Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal

from the once-more,-with-feeling dept

Earlier this month, in discussing some of the Homeland Security/ICE domain seizures, Karl put together an excellent comment, going through the legal analysis as to why the domain seizures were almost certainly not legal. Karl is not a lawyer, so I sent the comment to a series of lawyers I know who are very much on top of First Amendment issues, and they came back saying that his post was accurate, so I asked him to turn it into a full post, and here it is. With COICA being brought back, the timing is particularly appropriate.

The activities that these sites are doing has never been considered criminal infringement. Remember that "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright." (17 U.S.C. 506(a)(2)) The state has not met their burden of showing that criminal activity occurred at all.

Moreover, it's pretty hard to claim "willful infringement" when a site has been declared completely legal under its own country's laws -- as is the case with Rojadirecta. If it's infringing, it's at most "innocent infringement," which is in no way a criminal act.

Furthermore, none of these sites are "primary" infringers. To be criminal, they must be considered an accomplice, and that requires much, much more proof than "contributory" or "vicarious" infringement does in tort cases. You must share the primary's actus reus and mens rea -- in layman's terms, you had to actively, intentionally, and directly participate, and moreover you had to know the act was criminal. It's amazingly obvious that this doesn't apply to many of these websites.

Under 17 U.S.C. 512's "safe harbors" provisions, if the sites followed the rules laid out therein, they are not liable for infringement at all, and the only relief available is laid out in 512(j). Nothing in 17 U.S.C. 506 takes those safe harbors away. Even if you wrongly believe it did, obeying the law would (once again) make you an "innocent infringer" at most, thus ineligible for criminal infringement under 506. Yet there was not even an attempt to show that the sites did not follow those rules. And apparently many did.

These seizures were also done ex parte, meaning that the defendants were not given prior notice, and were not given a chance to contest the seizures in a pre-seizure hearing. Nor, for that matter, were they given that chance after the seizures occured.

Fort Wayne Books v. Indiana makes it very clear that an ex parte seizure of potentially protected speech, with the intent to take material out of circulation, is prior restraint:

While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, books or films may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here. Even assuming that petitioner's bookstore and its contents are forfeitable when it is proved that they were used in, or derived from, a pattern of violations of the state obscenity laws, the seizure was unconstitutional. Probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films.

Note that even taking the offending material itself out of circulation is prior restraint. These seizures went beyond that, and attempted to take entire websites out of circulation, non-infringing speech and all.

A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself "become a form of censorship," even making the doubtful assumption that no other copies of the film existed. [Emphasis in original.]

In other words, Heller only applies when you seize a copy of the work, you do it to preserve it as evidence, and it does not prevent public access to the work itself.

(1) there must be assurance, 'by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film'; (2) '[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution'; and (3) 'the procedure must also assure a prompt final judicial decision' to minimize the impact of possibly erroneous administrative action. [Emphasis mine.]

These seizures fail every single one of those requirements. Those requirements were put in place "so that administrative delay does not in itself become a form of censorship." This is exactly what is happening here. Forfeiture proceedings for the first round of seizures were only initiated six months after the seizures occurred. The majority of sites still have not had a chance to contest them, and some have only recently been contacted by the government, months after the domains were seized.

Others may rebut with Arcara v. Cloud Books, in which an adult bookstore was closed down because of prostitution occuring on its premises. The usual claim is that "the First Amendment is no shield against criminal activity." But Arcara was only constitutional because "the sexual activity carried on in this case manifests absolutely no element of protected expression." Furthermore, "We have also applied First Amendment scrutiny to some statutes which, although directed at activity with no expressive component, impose a disproportionate burden upon those engaged in protected First Amendment activities."

Copyright infringement does, in fact, have "an element of protected expression" -- that is, a First Amendment defense can be raised (it need not be raised successfully). For that reason alone, Arcara does not apply. But even if the activity was not itself protected, the mere fact that it imposes a "disproportionate burden" upon free expression, disqualifies it from Arcara exemptions. Arcara absolutely, positively does not apply to these seizures.

In case you're wondering -- no, obscenity is not any more "presumptively protected" than copyright infringement is. (Hint: child pornography is a subset of "obscenity.") The same seizure rules (18 U.S.C. 46) apply to both; First Amendment challenges can be raised to both; obscenity, unlike infringement, is always a criminal offense; and the punishment for obscenity is about the same as for criminal infringement. (It's all in 18 U.S.C. 71.)

It's also a dodge to claim that domain names are not "presumptively protected speech." First of all, that's not true. Name.Space v. Network Solutions ruled that general top-level domains (just the .com, .net, etc parts) are not protected, solely because they cannot possibly be expressive. When the domain name can possibly be expressive -- such as when it includes the full creative URL -- it is presumptively protected speech, and First Amendment concerns apply. (See: every single "sucks site" case, and the one about Glenn Beck raping and murdering a young girl in 1990.)

But it's even more of a dodge because the domain names are not even allegedly infringing. They were seized solely to prevent the public from accessing the websites themselves. So the TLDs' status as "protected" is completely immaterial; it only matters whether the websites themselves are possibly protected expression.

And, of course, they are. The majority of the speech on some sites (forums, blog posts, comments, etc) is absolutely, 100% protected speech.

Now, about those seizure laws. 17 U.S.C. 506(b) references 18 U.S.C. 2323, which allows the seizing of any "article, the making or trafficking of which" is criminal infringement. Compare this with the ennumerated articles that can be impounded from 17 U.S.C. 503: "all copies or phonorecords," "all plates, molds, matrices, masters, tapes, film negatives, or other articles," and "records documenting the manufacture, sale, or receipt." These laws were clearly to be used for counterfeit goods, not file sharing.

According to 18 U.S.C. 2323(a)(2), the actual procedures for criminal seizure are in 18 U.S.C. 46. There are three sections dealing with civil forfeiture, none of which seem particularly appropriate. It seems that judicial forfeiture is covered exclusively in 18 U.S.C. 985. 985(d) states:ates:

Real property may be seized prior to the entry of an order of forfeiture if--
(A) the Government notifies the court that it intends to seize the property before trial; and
(B) the court--
(i) issues a notice of application for warrant, causes the notice to be served on the property owner and posted on the property, and conducts a hearing in which the property owner has a meaningful opportunity to be heard; or
(ii) makes an ex parte determination that there is probable cause for the forfeiture and that there are exigent circumstances that permit the Government to seize the property without prior notice and an opportunity for the property owner to be heard.
(2) For purposes of paragraph (1)(B)(ii), to establish exigent circumstances, the Government shall show that less restrictive measures such as a lis pendens, restraining order, or bond would not suffice to protect the Government's interests in preventing the sale, destruction, or continued unlawful use of the real property. [Emphasis mine.]

In other words, even with counterfeit goods, you're supposed to allow an adversarial hearing before seizing anything. An ex parte seizure order is the "nuclear option," to be used only when other methods are insufficient. The affidavits claim that these were indeed "exigent circumstances," but that claim is completely laughable on its face -- especially since the sites were operational for years at the same domain name, without risk of "destruction" or "sale," and the seizures did not preserve (or even help gather) any evidence whatsoever. And no, "continued unlawful use" is not an "exigent circumstance" when that "use" involves potentially protected expression, or, for that matter, when the use is not necessarily unlawful in the first place.

...Now, I'm not a lawyer, and I'm only repeating what I've been able to dig up. You can possibly disagree with some of the above. But in order for these seizures to be legal, you have to disagree with all of it. I'm sure some here will try (and many more will just call me a "freetard" or "pro-piracy" or "LOL!" at me). But no matter how you slice it, the legality of these seizures is not obvious. It's not even likely.

The more I read the law, the more convinced I become that the seizures were a repulsive abuse of power. ICE did this deliberately to route around safe harbors and the First Amendment. They had no intent of filing criminal charges and were hoping the domain owners would be scared into silence. It is prior restraint, and it is censorship, plain and simple.

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Sorry to be blunt but it appears that it is YOU who don't seem to get it. There is no "infringement" unless and until a court of law says there is. The entire point (in case you have been sleeping) is about PRIOR RESTRAINT which is evidenced by the taking PRIOR TO any judicial determination as to whether or not any infringing activities have taken place.

"And it's only the domain name they lost. You guys' hysteria over this has been most amusing."

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However, in America, we have trials to determine if that's what happened.

Yes, every example of law breaking gets a trial, didn't you get the memo, Techdirt readers?

Before anything is seized, there must certainly be a trial- especially if it involves accusing someone of piracy. My constitutional right to infringe is above every law on the books! In fact, you're censoring me when you even dare go after a website I use to take copyrighted works without paying.

What??? Didn't you get the memo? The online world is completely different than the real world. Your laws don't apply to me because I'm online. Don't you understand? You need to adapt. You need to get a new business model. If I can take your product illegally and not worry about anyone coming after me, clearly technology has won and your laws can not be amended for that.

Oh wait, you want to apply your real world laws? No, you can't do that. The internet is a place where there are no laws. Stop trying censor me.

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For what it’s worth: I marked this as funny.

What I am saying is that that as an American, I would have liked to have seen people accused of unlawful activity have a chance to confront the charges before having property (real or otherwise) seized, or their businesses shut down. The fact that a law enforcement officer can attest to infringement, giving no specific details, and a judge will then sign an order to seize domains is troubling to me. It sounds as though you have no issue with that. At least, not as big an issue as with someone infringing on copyright.

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An ex parte seizure order is the "nuclear option," to be used only when other methods are insufficient

Clearly the other methods are not sufficient.

Prior restraint does not apply, as nobody is stopping the website owners from continuing business. Their servers are not taken, their products are not locked up.

The examples you are looking at send your logic in circles, because they all deal with tangible goods or solid objects. Domains names are phone numbers, they are cars, they are trucks. They are not the product or the activity in and of themselves. Seizing them doesn't suddenly stop free speech.

If ICE were locking up servers, shutting down ISPs, and getting people's internet connections cut off without warning, you might have a foothold here. But the domains themselves are nothing more than a bullhorn. The free speech can continue unabated, and thus does not rise to prior restraint.

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Simulate Lobo Santo's grasp of reality / Re: Re:

We could do the same with Lobo Santo except we would need to incorporate a random character generator in order to to simulate Lobo Santo's grasp of reality.

Software engineers usually have little engineering background. Having hired many engineers, both software and hardware I can safely say that the software version just are not as capable as hardware engineers.

Having written and or managed software projects it seems that software people spend their lives copying others work and writing endless amounts of marginally different repetitive code.

I have not figured out if they started out dull or the repetitive nature of their jobs make them this way. I do suspect that the former is the root cause.

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What if the someone was publicly preaching about some topic and the government came in and and put a bubble around him that reduced his preaching to a mere whisper and makes him hard for people to find or see.

He's still free to preach, he just cannot do it very loudly now. Would that be ok?

Same goes for these websites. Yeah, they can still do whatever they were still doing, but the outside world loses most of their access to them.

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I think you forgot to read the the part about glen beck and the case that establishes a domain name as free speech why don't you go back and read the whole thing before commenting the author clearly addresses domain names as a vehicle to free speech. and it free speech is like a car seizing a domain name is equivalent to seizing the cars engine when some one in the car is going around promoting some political nonsense or similar you have effectively crippled the ability for them to spread free speech even if they are still technically able to

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Are you suggesting that changing your phone number would cripple your free speech? Is the website not up and running, the servers on? Domain names are at best a directory system to make it easier to reach people. But at the end of the day, the information is in the same place as always.

The Glenn Beck thing is one ruling in a pile of many. As an example, it is not tangible property:

Th e soap box was not removed. The megaphone not seized. The park was not closed. Authorities removed the sign with the name of the park. If that by itself is enough to create prior restraint, then almost any act by government at all could be considered likewise.

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"Are you suggesting that changing your phone number would cripple your free speech?"

Example: a well known helpline number for gay men has to change its number because a religious organisation has accused them of something under obscenity law. Do you really think that the courts wouldn't see any prior restraint in that scenario? It's practically a textbook example.

"Th e soap box was not removed. The megaphone not seized."

They could buy another soap box. They could buy another megaphone. You really suck at making points when you provide examples so easily turned around.

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"The soap box was not removed. The megaphone not seized. The park was not closed. Authorities removed the sign with the name of the park. If that by itself is enough to create prior restraint, then almost any act by government at all could be considered likewise."

Are you saying ICE does not accomplish its goal of censoring these sites? That ICE wasted its efforts and the court's time? Are you saying that they were not able to cause harm to these sites?

I don't think you believe any of those things. Rather, it sounds like the schoolyard bully who, after tripping a kid, stepping on his sandwhich, and kicking dirt in his face, will help his victim up and ,with grinning, jovial condescention, say "You're OK, kid! Go rinse your sandwhich off and don't be a big baby about a little joke." Either ICE did (and continues to do) these things to put a stop to infringement, or they're simply harassing websites that anger their corporate owners.

So which is it? Does ICE accomplish their goal of censoring speech, or are they really wasting the court’s time and our taxes?

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"Authorities removed the sign with the name of the park."

As pointed out by others in another thread, the "Authorities" did WAY more than that. In the style of the Ministry of Information, they reprinted all the maps and directories that referenced the park. They included a message from the state saying that directions to the park would no longer be available.

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A "mechanism to transport the free speech is not the speech itself" And that is the law according to what?

Books - I have never heard a "book" speak - don't you have to read them and thus ain't they good ole mechanisms to transport"?

Movies - last time I went to the movies I had to listen. The FILM is the "mechanism to transport".

Other examples your definition does not fit

Shutting off your phone number
closing the radio
seizing the printing presses of a newspaper
Government ordering Mike to block your comments (you could post elsewhere)

At the end of the day, the government may well prevail in showing that at least some of these sites infringed. However, that is not the point. The point is that they must prevail in court first (or comply with the judicial precedent to seize prior to judgment).

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ooks - I have never heard a "book" speak - don't you have to read them and thus ain't they good ole mechanisms to transport"?

An empty book would be without speech, and thus meaningless. It is only a way to convey speech, not the speech itself.

Movies - last time I went to the movies I had to listen. The FILM is the "mechanism to transport".

Again, a blank roll of film isn't anything. It isn't the device, it is the content, the "speech" that is important.

BTW, because I think you are a little confused on the word, "speech" when talking about free speech doesn't involve opening your mouth and saying something. Speech in a legal sense is a communication. An image, a video, a movie, a song, a rant, or heck, even the mindless junk posted on this site are all "speech". You don't have to verbalize something to turn it into speech.

However, that is not the point. The point is that they must prevail in court first (or comply with the judicial precedent to seize prior to judgment)

See, what is why the debate. The only reason for forbidding a seizure of this sort of the "prior restraint" issue. But prior restraint has been ruled by the surpreme court not to apply at all times to commercial speech, nor does it apply to speech that violates copyright or trademark. So, as an example, a site that sells trademark infringing products is both commercial and violating trademark, and thus isn't subject to the restrictions of prior restraint.

Mike sends us all for a long loop through the walled gardens of his mind, but he ignores the most relevant, most on point rulings from the highest courts in the land. It's a great technique for a lawyer, and one easily defeated by the other side.

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But prior restraint has been ruled by the surpreme court not to apply at all times to commercial speech...

Hmmm...OK...what determines commercial speech? All speech on a website that is owned by a commercial entity? That standard would include most all news and opinion sites and most all blogs wouldn't it?

nor does it apply to speech that violates copyright or trademark.

That seems to put the carriage before the horse there - where was it proven that either those have happened? And yes I understand it would be "a preponderance of evidence" decided by a judge to get the seizure warrant, but still how does one prove those claims without a trial?

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prior restraint

n. an attempt to prevent publication or broadcast of any statement, which is an unconstitutional restraint on free speech and free press (even in the guise of an anti-nuisance ordinance). Stemming from the First Amendment to the Constitution, the ban on prior restraint allows publication of libel, slander, obvious untruths, anti-government diatribes, racial and religious epithets, and almost any material, except if public security or public safety is endangered (false claim of poison in the reservoir or exhortation to commit a crime like a lynching) and some forms of pornography. The theory, articulated by the U.S. Supreme Court in Near v. Minnesota (1931) is that free speech and free press protections have priority, and lawsuits for libel and slander and prosecutions for criminal advocacy will curb the effect of defamation and untruths. Most other nations permit prior restraint by court order or police action when the material appears to be defamatory (hurtful lies), salacious (nasty), or "improper, mischievous, or illegal" (in the words of Sir William Blackstone).

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restraint of trade

n. in antitrust law, any activity (including agreements among competitors or companies doing business with each other) which tends to limit trade, sales and transportation in interstate commerce or has a substantial impact on interstate commerce. Most of these actions are illegal under the various antitrust statutes. Some state laws also outlaw local restraints on competitive business activity.
See also: monopoly trust antitrust laws

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Those websites now have to find new domain names which will cause a lot of confusion, they got their business disrupted for no apparent good reason except a claim.

About the physicality of things how about I seize all your financial assets? or I seize Apple's trademark and say they need to change their name, how does that sounds?

If ICE were locking up servers, shutting down ISPs, and getting people's internet connections cut off without warning, you might have a foothold here. But the domains themselves are nothing more than a bullhorn. The free speech can continue unabated, and thus does not rise to prior restraint.

The only reason they didn't do any of that stuff is because they couldn't, because the mechanism used doesn't say you can only seize domain names it says you can seize anything and that means financial assets, physical assets and so forth.

Now that will be great for other countries to start enabling, since they will be able to seize all assets from companies they don't want in their markets and all they need to do is claim some BS and seize everything even if it latter found not to be merit it will cause serious damages to others, so in a sense Americans are planting the seeds for their own destruction here. Since entertainment is not that important but drugs from big pharma are, that will be epic to see India, Brazil and China seizing American companies for violating their laws and patents in retaliation for having their products seized in the U.S..

Hawei just got an injunction against Motorola in the U.S. a crime was commited should the Chinese ask ICE to seize all of Motorola's assets in the U.S.?

The interesting things about forfeiture is that I only hear about them being used against those who can't fight back mainly the poor, maybe is time to look hard at those laws and how they are being applied, there is a stink coming from that corner that is just overwhelming.

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Why it does not apply muppet?

The intentions of the seizure are for inhibiting those websites from publishing something, since those websites have no physical assets in the U.S. and are located physically outside U.S. jurisdiction this is not being done to stop anything but in a weak attempt to censor them, that much is clear.

Since it is a censor matter First Amendment concerns should be taken into account, since it has and did cause problems to legal entities and in at least one case a blog was silenced.

But really what concerns me is what other countries will do, this is just to juice to let it go, the minute the U.S. start seizing Chinese, Indian, Brazilian and Russian websites I want to see them starting to make laws to allow them to seize any assets from American companies that are inside their borders, since drug counterfeiting will be part of that and many of those countries have their own patents and systems which are not aligned with U.S. interests that will be fun to watch.

Also will we start to see reports of police officer seizing iPods and houses that they find illegal DVD's and CD's?

Could computers be seized from people's home for downloading illegal music?

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"Prior restraint does not apply, as nobody is stopping the website owners from continuing business. Their servers are not taken, their products are not locked up."

I don't think you are correct. When the government interferes with a method of communication it is interfering with the speech itself. This was settled back in the day when courts were dealing with public gatherings and passing out pamphlets. The government's argument then was that they were not banning the right to speak but rather only the right to communicate in the way undertaken. The courts in virtually all instances sided against the government.

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If the seizure prevents websites operating, it is violating the right to freedom of speech. And if, as you claim, it does not prevent websites operating, how the hell does it do anything to fight copyright infringement?

What exactly do you think it is supposed to achieve? If you think it's legal, how do you justify that? The government is not allowed to seize property without a damn good reason! Not even telephone numbers, cars, trucks, or whatever the hell a bullhorn is. So how exactly does seizing a domain name prevent copyright-infringing speech while somehow magically not unconstitutionally affecting non-infringing speech?

Sorry, Karl, but Arcara is controlling. Wholesale copying is not protected speech, and there is no prior restraint. Even if the servers themselves had been seized, the fact that they may contain protected speech that is incidentally affected is irrelevant.

Under Name.Space, domain names are not presumptively protected speech: "Domain names and gTLDs per se are neither automatically entitled to nor excluded from the protections of the First Amendment, and the appropriate inquiry is one that fully addresses particular circumstances presented with respect to each domain name." If a determination has to be made on a case-by-case basis, then there is no presumption. A presumption would mean that no case-by-case determination would have to be made.

Bringing obscenity, trademark, etc. into the analysis only muddies it. You're trying to apply the wrong rules. Your whole post is a confused jumble of logic, to say the least.

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So I shouldn't listen to you but I certainly shouldn't listen to Karl? What's the difference? And I don't mind listening to either of you. Unless someone is being an ass then I don't care what they are saying.

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I will chime in here, though be aware that USA law is NOT my expertise at all.

I agree with nearly all of what Karl has stated, and with all that I have read, researched, and talking with other colleagues, my legal opinion is that the US Govt has no legal ability to seize internationally owned domain names (domesticaly owned ones are a different matter) whether those domain names were managed by a US registry in the manner that they have.

Mainly because the action against the DNS named property was done 'in rem' which can only be used where the proprietary title to the property is either unknown or in dispute ie: DoJ v Ex Parte (property).

Whereas here the owner of the property is absolutely known, especially in the case of such entities as Rojadirecta, which under common law then makes them the presumptive owner which means therefore an in personum action HAS to be taken with all of it's due process's.

Also the title to the property is NOT held within the USA giving rise to a conflict of laws (private international law in this case unless they try to go the criminal route). In the case of Rojadirecta, the forum where they reside has stated in proceedings that they are a legal venture causing major problems with jurisdiction, choice of law, and judgement ability.

As I have said previously in passing on a comment, these actions on behalf of the US Govt against International entities and their properties, especially since the actual property is still being used and is also being used and is available to be viewed worldwide to promote/educate/inform (therefore ADVERTISE) a US government policy for a purpose not authorised by the proprietary title owner to the property leads one to the only assumption that can be made: that the US Govt has seized the property under Eminent domain, which leads to a whole new can of worms

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Yes, it is quite clear that US law is within your area of expertise. Seriously, to use but one example, please explain how In Personam jurisdiction can be secured by a US federal court when an individual resides outside of the reach of US law?

In Rem jurisdiction is an entirely different matter when a site is registered in the US, and the US agent for service of process resides in the US.

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Look up and read - "C. In Rem Jurisdiction and Due Process" and "2. Due Process and In Rem Jurisdiction over Internet Domain Names "

Though the whole thing is fascinating. And if you notice it still only talks about if the owner is unknown.

Oh and they are NOT outside of the reach of US Law in these matters. IsoHunt, Pirate bay, and others are prime examples of that.

I think though that you are you trying to ask "how do you apply US Law when other countries state those laws are wrongful and not equitable, and the treatise we signed don't work in the US favour all the time".
The answer to that is Welcome to the REAL world, where the law is not dictated to by a republic but instead by democracies.

Getting back to my original comment. In Rem and In Personam are not really my concern here, the concern for me isn't even Prior restraint, my concern is the second part I stated. If as stated these Domains are seized/forfeitured for either criminal or civil actions. Why are they now being used for Governmental purposes instead of being stored in a pristine state for evidential purposes?

Remember they have not been destroyed, nor have they been removed from usage as forfeiture property is supposed to, unless and until a duly formed hearing says otherwise. Especially if the seizure was challenged.

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In personam jurisdiction can easily be secured against someone who doesn't live in the district. How do you think Righthaven is able to sue people in Nevada who live in other states? Because those people purposefully avail themselves of jurisdiction in Nevada when they use the internet to violate the rights of a Nevada company.

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No, no, because then he'd hear it FROM A LAWYER. You know, "If you want to know whether some material infringes or not, ASK A LAWYER".

That's the common troll thing to say. The trolls all seem to want to confuse a lawyer's opinion with a court's ruling. "All you have to do is HAVE A LAWYER REVIEW all the X's on your website" and you'll be protected.

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So now we reach the end of the line: Joe's back is against the wall thanks to Karl's rock-solid logic, and he has no idea where to start chipping away at it, so he's resorted to denial.

Clarify, Joe: are you accusing Mike & Karl of an outright, baldfaced lie when they say that multiple first amendment lawyers have agreed with this post? Because unless that is your accusation, it seems rather desperate to ignore it on the basis that it didn't come straight from the horse's mouth.

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Karl's rock-solid logic? LOL! If Mike's got a bevy of First Amendment lawyers who say that this is how it is, let's hear from them directly. The repeated hearsay is really, really old. Surely one of them can spare a few moments to tell us what they think.

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I'd have thought this would be right up your alley, AJ. Karl bothered to give a long thoughtful explanation of his view and backed it up with references to boot. Something you USED to do.

Your response was to claim that one case controlled w/o bothering to cite why for all us non-DeVry law students and then dismiss the entire post as muddied and confused jumbled logic. To boot, you missed Karl's point about the method by which speech must be handled when POTENTIAL 1st Amendment defenses can be raised.

1I can't read what you've been writing lately. I try....I really do. And I can read. And I see that you have written something. Yet usually about halfway through your first sentence, my eyeballs declare war on me for forcing them into this and try to stab me in the brain.

Do you have any idea how much this hurts? To have your own eyeballs try to stab you in the brain. I tried to reason with them. "C'mon eyeballs," I usually say. "You're my second favorite pair of balls on my body. I don't mean you no harm, I just want to read this guy's comment".

But do they listen? No. They just keep trying to stab my brain with oddly formed silia.

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I'd love for Karl to back up his claim that since a potential First Amendment claim can be raised, then the seizures are prior restraint. Noticeable he offered no support for this claim, and I think it to be incorrect.

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WTF? Are you kidding now? He backed it up in his article. It's largely what the article was about!

He argues Arcara Books, follows up with an explanation that there are elements of free speech even in infringement (as 1st amendment claims can be asserted and don't need to be so asserted successfully), and then cites cases from there on out as to what the rebuttals generally are and why they don't apply.

Re: Re: Re: Re: Re: Re: Re: Re:

Actually, he didn't back it up, he pointed mostly to unrelated and not on point cases.

Specifically, there is no legal ruling I can find that equates a domain name to a book or a movie. The content of the website perhaps equates to the content of the movie or the book, but a domain name is just like the bag you would use to carry it.

Prior restraint would actually require that speech is stopped. The speech is not stopped, the server is still up, and is still reachable. The content (what is on the website) has not been censored or restricted.

Further, it is clear: Prior restraint isn't a trump card over everything else. The Supreme Court has ruled that prior restraint doesn't always apply on commercial speech, nor does it in cases of copyright or trademark infringement.

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Prior restraint would actually require that speech is stopped. The speech is not stopped, the server is still up, and is still reachable. The content (what is on the website) has not been censored or restricted.

I don't know why you even bother when you appear to be wholly unfamiliar with prior restraint. States that have put taxes on ink have been held to be unconstitutional prior restraint for making it that much harder to publish. No speech was "stopped" there, but it was made more difficult by the government... and it was prior restraint.

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And yet, you haven't shown where the domain seizures made free speech any harder for US citizens (the only one the prior restraint can apply to).

There have been tons of prior restraint arguments, many of them lose. It's why the government can make rules to limit things like pornography, even when it is considered protected speech. States can still require that porn mags are kept out of view. If that doesn't make the speech harder than taxing ink, what does?

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It's interesting... when someone points out that the doman names should not be subject to seizure since they themselves are not infringing and they contain no evidence related to infringement, you say they are directly connected to the sites so they still count. But when arguing that this isn't prior restraint, you insist that the domain names are entirely separate from the sites, and don't count.

Re: Re: Re:

That's another huge problem with Mike's analysis. In fact, I called him out on it in a different thread earlier today. His arguments that this is prior restraint only apply to the copyright seizures. But he doesn't explain how it's also prior restraint on the trademark seizures.

Re: Re: Re: Re:

I would just like to state that all of average_joe's comments on this and every other topic have in fact been my own copyrighted material, I believe my name is well enough known in the internet world for people to take my word for it.
We know he will try to argue that not all are covered by my copyright,
but they must be made unavailable to access from this moment and in a few months, when tempers have cooled then I might consider allowing him to make some effort to justify his theft, piracy and corruption.

Remember there is no first amendment issue here as wholesale copying is not protected free speech and I am stating that everything he says is copied ummm wholesale from me.

So shut him down Mike, or do I have to get ICE to do a press conference from my keyboard before seizing your domain.

Re: Re:

It only works if the lawyers consider a domain name to be like a book or a movie. In reality, it is like a phone number or a post office box. There is no free speech in the object.

Seizure of a domain name doesn't restrain the speech in a manner compatible with seizing all books printed before release or locking up every copy of a movie. At best, it is like seizing the sign off the book store, a gesture that doesn't diminish the speech.

I would say that the first amendment lawyers you are talking to are all on the side of free speech no matter what. Perhaps you want to start talking with other people to get a more balanced view of the world.

Re: Re: Re: Re:

- commercial violations of copyright and trademark have been found exempt from prior restraint restrictions, and

- illegal or unprotected speech is not covered by the first amendment.

Those are two facts. Not opinion.

So while Mike may have had a lawyer friendly to the cause "vet" his opinion, they appear to have done a Masnick Effect on the two basic facts above.

As for the "phone number or po box" comparison, the domain name is only an address, and not much more. Unless the name itself is the protected speech (and I can't remember it ever being found to be), it doesn't rate first amendment protections in and of itself. Since the speech being put into the "domain" container is commercial trademark or copyright violation, it doesn't qualify either.

They might have a case if they entirely ignore what the domains were being used for. It is the difference between working with all of the information, and working in a legal playground.

Further, the courts have found that even some protected speech can be blocked without issue if illegal speech is stopped.

Re: Re: Re: Re: Re:

"- commercial violations of copyright and trademark have been found exempt from prior restraint restrictions, and

- illegal or unprotected speech is not covered by the first amendment.

Those are two facts. Not opinion.

So while Mike may have had a lawyer friendly to the cause "vet" his opinion, they appear to have done a Masnick Effect on the two basic facts above."

Yes, those two are facts. However, your Masnickal musings aside, it is also fact that a process exists for removing whatever items exist on the site that offend the copyright owner. And I'll match you another fact in the fact that seizing a site's entire domain casts a wide net that (AS IT HAS BEEN POINTED OUT PREVIOUSLY) takes down plenty of legitimate speech with it. It's THAT speech that warrants protection and you conveniently ignore that.

"Further, the courts have found that even some protected speech can be blocked without issue if illegal speech is stopped."
Or maybe you're alluding to that here... I would assume that "even some protected speech" is something a court would have to evaluate. Or can it be blocked wholesale? How is "illegal speech" established in such cases? In an adversarial hearing?

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seizing a site's entire domain casts a wide net that (AS IT HAS BEEN POINTED OUT PREVIOUSLY) takes down plenty of legitimate speech with it. It's THAT speech that warrants protection and you conveniently ignore that.

No, sorry, that's not how the law works.

If it was, then every criminal would make sure to include some example of legitimate speech in the commission of his crime, so he could say "sorry, you can't bust me because you'll be violating my first amendment rights."

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"If it was, then every criminal would make sure to include some example of legitimate speech in the commission of his crime, so he could say 'sorry, you can't bust me because you'll be violating my first amendment rights.'"

That's a cute little straw baby you've got there. Watch this...

If it was, then every criminal would make sure to include some example of legitimate speech in the commission of his crime, so he could say "sorry, you can't just seize the instruments of my speech without arresting me or offering me an adversarial hearing before a court, or you'll be violating my first amendment rights.

There. Fixed it for you.

It’s almost as though you manufacture these silly arguments on purpose to avoid a real discussion. Weird...

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Thank you so much, Sir. I didn't realize that this entire discussion up until now was compeletely unnecessary. If I may be so bold, Sir, you could have saved everyone here from a fair amount of repetetive stress by simply letting us know that there was no room for interpretation. I will dust off my sandwhich and sit down and shut up...with the Court's permission, of course.
By your leave, Sire
(Bow, step backwards, Bow, step backwards, Bow, step backwards)
[And......scene!]

Re: Arcana is Controlling

Okay, so you think Arcara is controlling. I still don't see how Arcara would find these legal. It held that sanctions on nonexpressive activity do not activate First Amendment protections. However, copyright is is not a sanction on nonexpressive activity, but rather a right to restrict otherwise expressive activity. Here the protected activity is intrinsically tied to the reasons for seizing the domains, and hence Arcara does not affirm the seizures.

Additionally, you state that wholesale copying is not protected speech, but I do not believe that simply claiming a site contains wholesale copying removes its First Amendment protections. Speech is always assumed to be protected and must be proven otherwise. This can not be done without an oppositional hearing.

Re:

>>Wholesale copying is not protected speech, and there is no prior restraint.

The copying might not be protected speech, but there was a lot of free speech taking place on some of the seized websites. There were blogs with commentary about music, the recording industry, P2P issues, and a whole lot of other stuff. In fact, on some of the sites blogs were the primary site content.

Depending on what is being copied, copying could also be considered free speech. If the items copied included documentaries or politically themed music it could possibly be considered prior restraint to suppress them without meeting very strict legal mandates, even if they were infringing.

Re: Re:

The copying might not be protected speech, but there was a lot of free speech taking place on some of the seized websites.

When incidental examples of protected speech are affected in the midst of illegal activity, it does not constitute a First Amendment violation.

If the items copied included documentaries or politically themed music it could possibly be considered prior restraint to suppress them without meeting very strict legal mandates, even if they were infringing.

No. The First Amendment does not trump copyright law.

When political candidates try to use music for their campaign themes without permission, they are sued and forced to stop.

Re: Re: Re:

”When incidental examples of protected speech are affected in the midst of illegal activity, it does not constitute a First Amendment violation.”

Do you mean alleged illegal activity, or are trials and stuff just silly annoyances to you?

“No. The First Amendment does not trump copyright law.”

Why would it? If the framers had wanted it to have some power they would have given it a higher number, like, say, 52. Surely the first amendment can’t be as strong a force as a reluctantly included clause. That would just be whacked!

“When political candidates try to use music for their campaign themes without permission, they are sued and forced to stop.”

I haven’t been around that long so I may lack the historical perspective needed to see your point; has a political candidate ever defended the use of a song as necessary to some political commentary. I don’t recall Bob Dole saying anything substantive about “I’m a Dole Man.” You might as well have said, “When proprietors of drinking establishments try to play unlicensed music for customers, they are sued and forced to stop.”

Re:

"If any proper lawyer could have warned ICE that these seizures were headed for a legal brick wall, why did they go through with them?"

Its all a well thought out plan (ROFLMAO), with people playing their parts at specific times. The problem is that this part of the plan required for COICA to be passed by now, and oops, it was blocked by Senator Wyden. They are now getting desperate. So they pushed ahead with an ill conceived plan in an attempt to stop the slide.

Online sales are going to tank this year. Last year there were a couple unknown (to the labels), unsigned, indie artists, on the billboard charts. Facebook, youtube, and soon uTorrent apps will and have made promotion easier.

Under development is an CC, FMA, etc app for uTorrent that allows voting for different types of music. What you might like music suggestions. With facebook and twitter to forward stuff to your friends. Its "The Amazon of free".

Re: Re:

Mike, It's a real shame that you can't get one of your genius First Amendment lawyer friends to write up a post analyzing the legality of these seizures. It would be nice to have legal analysis from a real-life lawyer.

Re:

Re: Re:

average_joe is implying that Mike is a liar. While I rarely agree with average_joe, and I certainly am not calling Mike a liar, I too would be interested in some commentary from the lawyers that examined Karl's post.

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I'm not implying that he's a liar, I'm only pointing out that we don't know exactly what these genius lawyers who always agree with Mike actually said. You'd think one of them would have five minutes to spare to back up their good friend Mike.

Re: Re: Re: Re:

Even if an actual First Amendment lawyer were to weigh in on this debate, in this comment section, I could bet my right nut that you would argue until you were blue in the face that they were not, in fact, a real lawyer.

None of your posts in this thread have in any way been constructive, only dismissive or argumentative.

Re: Re: Re: Re: Re:

"You're just being silly. It's one thing to say I have professors. It's another for me to claim that my professors have made a particular claim."

Really?
Both are unverifiable claims.

You claim you have professors.
I claim you infringe my copyright.
Mike claims to have had lawyers vet his reading of the law.
ICE claims sites are engaged in copyright violations and some in trademark violations.

If only there was some kind of system whereby claims could be made, with evidence provided and tested.

What's next?

I think that a lot of the posts about these seizures show that there are serious problems with (or at least questions about) seizing domain names without a trial. I'd like to know what can be done about it. Are there any suggestions on what readers can do to prevent more of these seizures? Should we contact our representatives, can we contact the judge or ICE? What options are there to stop this or slow it down?

Republicans and Democrats, Conservatives and Liberals, George W. Bush and Barack Obama. Democracy is a facade to placate the multitudes, who believe the two sides are competing, rather than cooperating. In reality, both are bribed equally by the same lobbyists, and both toe the same line when elected. There is no democracy; there is only corpocracy.

The only law is the will of the corpocracy. Those who point out illegal actions or logical fallacies of the corpocracy will be ignored. Those who act against the corpocracy will be tortured into compliance.

Now we've done it!

Now that we have proved repeatedly, beyond anything even close to reasonable doubt, the DHS/ICE has clearly broken the law here I'm sure they will promptly apologize and reinstate all those seized domains, clean a little house, and act much more appropriately from here on out.

This is just like in high school when I carefully explained to that bully why his actions were wrong and that continuing those actions were not only bad for me, but also bad for him... wait, that didn't turn out too well.

Re: Good God....

"I mean, you don't like the comments/articles here people, GO SOMEWHERE ELSE!"
The opinions aren't the problem; rather, they're welcome and they're the purpose for these discussions. The trolling's the problem.
What I find maddening is that soon after the junior high ***tard lobbers lose interest and let a real discussion occur, everyone else loses interest too. Then we start all over at the next article.

Thank you for putting this together and reposting it. It clarifies some of the arguments that have been put forth and makes the arguments a little less "frenetic." I still think there are a few missteps(although not critically damning) it's a pretty well put together legal argument. Just a few broad comments

- The Rojadirecta argument is a non-sequitor. Just because something is legal in Spain does not mean it's legal in the US. I do think it's a good way to highlight discrepancy in the law and use as a starting point in a blog post, but not prove a legal point.

- I still have an issue with using obscenity(btw, Child Porn is not really obscenity, since there is no community standard, subtle distinction) law as the underlying reasoning for this. I agree that many of the same issues and legal reasoning would be presented in the analysis/constitutional calculus, I think there a few other factors(such as copyright in relevant cases) which adds another variable. Although they may not come out differently, I'd advise against using all 3 of those cases as on point case law (you'd have to make the bridge that obscenity and copyright violation are on the same exact footing, which I haven't seen done). Also, trying to relate by listing Rules of Civil procedure and the fact one is a felony while the other is sometimes a felony does not equate the 2. If there were to be a constitutional analysis my suspicion is that they would way the underlying justifications of copyright and the reasons for moving swiftly against the free speech principles involved and the governments ability to curb free speech through copyright violations. I think with this instance I think there is wiggle room.

- Not Quite Right: "And, of course, they are. The majority of the speech on some sites (forums, blog posts, comments, etc) is absolutely, 100% protected speech." Reasoning: Just because the inside cover has a line from Voltaire, does not make the entire book legitimates speech(I apologize for missing the reference(and hopefully not butchering the quote), no books with me and google was not helpful). That said, they used a chainsaw when a scalpel would do(especially in instances with no adversarial system in place).

- As to the second to last paragraph, I'm not sure that thinking the seizures are legal means you have to disagree with all of it. I don't remember enough Civil Procedure to keep up without rereading most of it, but anecdotes suggest that seizures of material without a proceeding and where destruction is not imminent happen(I think the impounding/seizure of a car when the driver is arrested is a decent example, although not entirely analogous). I also think that during litigation someone will make the argument that domain names are not real property, and therefore there is little harm to the websites(which I think is arguing against yourself, why take the domain if it's meaningless) and the first amendment v. copyright issue would really become a main focus in terms of limiting speech by taking a fictional internet placeholder.

- The last paragraph: I am starting to agree that many of these are overstepping, mainly because I think it would be extremely difficult to show intent in an initial proceeding to any standard that would have enough due process, unless there are direct advertisements that these sites were pirating information OR copyright holders provided some sort of "please take the links to our pirated copyrighted material" which was not responded to in a timely manner. That said, there may very well be a statutory loophole which is almost impossible to find.

Re:

"The Rojadirecta argument is a non-sequitor. Just because something is legal in Spain does not mean it's legal in the US."

It was brought up to disprove wilful infringement. Perhaps you should reread that bit.

"Just because the inside cover has a line from Voltaire, does not make the entire book legitimates speech"

Nothing of the sort was implied. It was said specifically that the majority of speech on the sites is protected speech. If you're equating the book to a site then it would be like saying 'the book is mostly 100% legitimate speech', which implies more than a line on the inside cover (unless it is an extremely short book).

"I also think that during litigation someone will make the argument that domain names are not real property, and therefore there is little harm to the websites (which I think is arguing against yourself, why take the domain if it's meaningless)"

Why bother with any checks if they don't catch a self defeating argument? It took us non lawyers all of immediately to point out the absurdity of the claim that the seizures weren't harming the websites, based on the purpose of the seizures.

Re: Re:

Disprove US law with an international decision? That's a pretty bad argument. I understand where the argument is directing us(that since another country says it's ok that it was done there that it can't be willful infringement under a US standard), but it is not uncommon for different courts with different cultural norms to come to different conclusions. Do you agree with that last statement?

So you're saying that if something is mostly free speech it cannot be prosecuted? So all I have to do to sell child porn is to talk about the evils of Sarah Palin for 50 minutes for 10 minutes of sin because this tape would be mostly politically protected free speech?

Unfortunately, most litigation is based on what you can argue with a legal merit(statute or case law), not if there is a basis in reality. Most times judges catch it, but I could conceive of a few judges(in a Posner/economic mold) who would look at this as a way to justify their end result. I'm not saying I agree, it just wouldn't surprise me.

Re: Re: Re:

"Disprove US law with an international decision? That's a pretty bad argument."

Is this a stalling tactic? Your prose is so eloquent that I must believe it to be so. You are not that obtuse.

For anyone who may have legitimately missed it, when vivaelamor said:
It was brought up to disprove wilful infringement. Perhaps you should reread that bit...

...he was talking about how you couldn't expect Rojadirecta to disregard the rulings of its own countries courts when reviewing its activities. If you really thought that he was saying he could disprove the concept of willful infringement, then I congratulate you on your exemplary writing ability in the face of your developmental disability.

"So you're saying that if something is mostly free speech it cannot be prosecuted?"
Disingenuous again, eh. Well, go with what you know. What most of us are saying is that by all means it can be prosecuted. In one of those places where there's a judge and maybe some regular Joe's and you have to BE THERE. You know, Due Process. That think you want to doodoo all over. And I believe you KNOW that's what most of us are saying.

Your straw men are packed in too close and it's a fire hazard. Feigned ignorance is the worst kind, because it's worn by choice and no one should be ignorant on purpose.

Re: Re: Re:

"Disprove US law with an international decision? That's a pretty bad argument. I understand where the argument is directing us(that since another country says it's ok that it was done there that it can't be willful infringement under a US standard), but it is not uncommon for different courts with different cultural norms to come to different conclusions. Do you agree with that last statement?"

I don't agree that you understand, but I agree with the second half, for whatever that's worth.

"So you're saying that if something is mostly free speech it cannot be prosecuted?"

No, I was refuting your point. That you infer something more from what I said is troubling.

"Unfortunately, most litigation is based on what you can argue with a legal merit(statute or case law), not if there is a basis in reality."

Strangely, the two aren't mutually exclusive. What with law being part of reality.

Homeland Security?

http://en.wikipedia.org/wiki/Homeland_Security_Department
"The United States Department of Homeland's Security (DHS) is a cabinet department of the United States federal government, created in response to the September 11 attacks, and with the primary responsibilities of protecting the territory of the U.S. from terrorist attacks and responding to natural disasters. In FY 2010 it was allocated a budget of $42.7 billion and spent, net, $56.4 billion.

Whereas the Department of Defense is charged with military actions abroad, the Department of Homeland Security works in the civilian sphere to protect the United States within, at, and outside its borders. Its stated goal is to prepare for, prevent, and respond to domestic emergencies, particularly terrorism.[4] On March 1, 2003, DHS absorbed the Immigration and Naturalization Service and assumed its duties. In doing so, it divided the enforcement and services functions into two separate and new agencies: Immigration and Customs Enforcement and Citizenship and Immigration Services. Additionally, the border enforcement functions of the INS, the U.S. Customs Service, and the Animal and Plant Health Inspection Service were consolidated into a new agency under DHS: U.S. Customs and Border Protection. The Federal Protective Service falls under the National Protection and Programs Directorate."

and to be sure no one watches movies or listens to songs without legal permissions.
?

As the owner of a domain name I would be really upset if my domain was siezed, and I would be out for blood if it had a mistaken siezure for child pornography label on it even for one minute. Domain names may seem expendable to some, but when you consider the time invested in building your following of visitors only to have that suddenly whiped from existance without due process is inexcusable. If you ask me I would say this country is on a toboggan ride strait to hell.

Re:

Except you missed the main point: The only domain names seized were in fact related to child porn in some manner. mooo.com being a third level domain provider put themselves in a bit of a spot by having child porn sites in their mix. Authorities realizes that seizure was not the best way to deal with this particular issue, and the domain (it is only one domain) was turned back on.

If you pay for your domains, and your domains are filled with legal content, you will never have an issue.

Danke Shoen

Hey, all.

I don't have a lot of time right now - I've got a lot of homework to do - but I thought I'd pop in and say THANK YOU to everyone for the comments. Especially the funny ones (I'm looking at you, DH and Lobo).

I'm also heartened that only one person played the "pro-piracy agenda" card.

Having said that... there are a couple of criticisms that people have made, that I directly addressed in the article itself. Mostly these deal with the Arcara and Name.space rulings. I quoted the cases themselves, and links to the case law are right there, so go ahead and read them.

It doesn't make that much difference, but Mike did run it by a few lawyers. He showed a couple of their comments to me. I won't name who they are, because I didn't get their permission to do so. If they want to chime in, they're more than welcome.

I did want to add one final point, which didn't make it into the article (through no fault of Mike's).

It would miss the point to lay all of the blame at DHS's doorstep. They deal with counterfeiters, who are often criminal organizations, and will shoot at you if you try to shut them down. I recognize that you have to play hardball with these types.

What this does show is that DHS is exactly the wrong agency to handle online infringement. For example, it's not surprising that they didn't consult 17 U.S.C. 512, since that law could not possibly apply to a guy selling counterfeit handbags on a street corner. Mike told me that they don't even want to handle online infringement, but are under pressure from Espinel and the media industries. I don't know if it's true, but it would not surprise me in the least.

It also shows that file sharing and counterfeit goods should never be lumped together. They're completely different activities, done by different people for different reasons, with different legal concerns.

...Now, I've got to get back to Java and calculus, then practice for a performance next week. Thanks, all.

Re: Danke Shoen

I would love to see the lawyer who agreed with you that 18 U.S.C. 985, dealing in real property, has anything to do with these seizures. Remember when I told you that real property meant real estate? I can't imagine that any lawyer who actually thought about it would agree with you that that statute applies here.

Also, it's amazing to me that you never mentioned 18 U.S.C. 2319 since that's the basis of authority for these seizures to begin with. Why the glaring omission?

If you find time, can you back up this claim wherein you attempt to distinguish Arcara: "Copyright infringement does, in fact, have "an element of protected expression" -- that is, a First Amendment defense can be raised (it need not be raised successfully). For that reason alone, Arcara does not apply."

But you were the one who said this section was not applicable, because it did not refer to judicial forfeiture.
And you were the one who led me, instead, to 18 U.S.C. 985, as it was the only section in Chapter 46 that dealt with judicial forfeitures. That was the law that I quoted. Are you going to admit you don't know what you're talking about?

Well, maybe you will. In our last conversation, you admitted you didn't know which part of Chapter 46 applied. This, after you repeatedly berated me for the same uncertainty (and I, unlike you, am not studying law).

So, I'll ask you again: If 983 is not applicable, and 985 is not applicable, what is?

I'm genuinely curious - because, as I said in the article, none of the rules in Chapter 46 seem appropriate for seizing domain names.

Also, it's amazing to me that you never mentioned 18 U.S.C. 2319 since that's the basis of authority for these seizures to begin with. Why the glaring omission?

Maybe because this section of the law only deals with penalties for infringement, which apply only after you've been convicted in a court of law. Nothing in this section deals with seizures, or the procedures necessary to enact them. It certainly isn't the "basis for authority" for these seizures, any more than lethal injection is the "basis for authority" for a search warrant.

If you find time, can you back up this claim wherein you attempt to distinguish Arcara: "Copyright infringement does, in fact, have "an element of protected expression" -- that is, a First Amendment defense can be raised (it need not be raised successfully). For that reason alone, Arcara does not apply."

It seems pretty self-explanatory, but I'll elaborate.

Arcara, by the court's own wording, only applies if the criminal act "manifests absolutely no element of protected expression." In other words, the allegedly criminal act "manifests an element" of protected expression, Arcara can not apply. Copyright infringement does, in fact, manifest that element - because First Amendment protection can possibly be a legitimate defense against the "criminal" act. Fair use, for example, is a legitimate defense against any infringement charge - it is even a defense against "criminal" infringement. Whether the defense is ultimately successful is completely immaterial. All that is required is the possibility that a First Amendment defense could be successfully raised, and Arcara does not apply.

Furthermore - and I'm quoting Arcara itself - any law that could "impose a disproportionate burden" on legitimate speech, is explicitly not covered by Arcara. The example that the judges gave - again, in the Arcara ruling itself - is a tax on ink used in printing newspapers. Obviously, a tax on ink is not taking anything out of circuation, nor is ink itself protected speech. Yet because it singles out entities who engage in protected speech, it is prior restraint.

We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment."

That statement makes it explicit that Arcara does not apply.

On a related note:

domain names are not presumptively protected speech

You've raised this point before, and it boggles the mind how you could actually believe it matters. First of all, it's not true - according to the Name.space ruling, it applies only to those parts of the domain name that are (and I quote) "lacking in expressive content." But even if it was, you claim that if the names of the seized domains are not presumptively protected speech, the seizures are automatically legal.

This simply doesn't make a lick of sense. For example, a printing press is not "protected expression." Nobody thinks that somehow the manufacturers of the printing press are being censored if the government seizes one of their presses. But by your logic, any federal agency who wants to seize a printing press cannot possibly be engaging in prior restraint. "Hey, the press itself isn't protected expression, so it's all good!"

No. It doesn't matter whether what is seized is actually protected. The only thing that matters is what effect the seizures have on potentially protected speech.

And here, quite clearly, the stated intent was to silence speech. Some of that speech may be infringing, some of it may possibly be criminal; but for many websites, the majority of the speech was protected. That is the textbook definition of prior restraint. I honestly have no idea how you could possibly believe otherwise.

Re: Re: Re: Danke Shoen

I remember telling you before that Section 985 dealt with real estate. I believe I told you to look at Rule G from the Federal Rules of Civil Procedure, titled Forfeiture Actions in Rem.

You're right about Section 2319. I was confusing that section with 2323 in my head. My bad.

I think you're misunderstanding what can and can't be seized. Almost anything could be said to have some element of protected speech. That doesn't mean it cannot be seized by warrant absent a prior adversary hearing.

See, for example, U.S. v. Kimbrough, 69 F.3d 723 (5th Cir. 1995). In that case, Kimbrough was suspected of downloading child pornography from the internet. Agents executed warrants and seized his computers, among other things. Kimbrough argued that the warrants were unconstitutional because many of items seized were presumptively protected speech.

The Fifth Circuit, citing the U.S. Supreme Court case Marcus v. Search Warrants, 367 U.S. 717 (1961), held that: "In cases where warrants seek to seize material presumptively protected by the First Amendment, the level to which the items to be seized must be particularly described is heightened." The warrants in Kimbrough's case were sufficiently particular to withstand constitutional challenge.

The court further noted: "Kimbrough's reliance on cases involving obscenity is misplaced. The determination of which presumptively protected materials are obscene is a legal one and, therefore, not to be left to the discretion of the executing officers. Identification of visual depictions of minors engaging in sexually explicit conduct, in comparison, is a factual determination that leaves little latitude to the officers."

The obscenity cases that Kimbrough relied on included Fort Wayne Books, among others. The court is saying that obscenity is a subjective determination that the agents could not make, while child pornography is an objective determination that the agents could make.

Wholesale copying is also a factual determination that can be made by agents. It does not take a judge to determine that a website offering entire copies of the latest Harry Potter movie is probably doing so illegally. There is no First Amendment determination that has to be made as in an obscenity case.

Talking about a tax on ink misses the whole point. If a printing press is being used to commit crimes, that specific printing press can be seized and forfeited.

You seem to think that seizures must be for the purpose of preserving evidence. Again, this is not correct. Things that are themselves illegal, i.e., contraband, may be seized. So may the fruits of criminal enterprise. And lastly, the situation we have here, the instrumentalities of crime may be seized.

Re: Re: Re: Re: Danke Shoen

"You seem to think that seizures must be for the purpose of preserving evidence. Again, this is not correct. Things that are themselves illegal, i.e., contraband, may be seized. So may the fruits of criminal enterprise. And lastly, the situation we have here, the instrumentalities of crime may be seized."

While circumstances exist under which illegal things can be seized, isn't there a different test for search warrants to preserve evidence? You say, "You seem to think that seizures must be for the purpose of preserving evidence. Again, this is not correct." but you then go into great detail about The Kimbrough case, which involves a search warrant to gather and preserve evidence.

"Kimbrough's reliance on cases involving obscenity is misplaced. The determination of which presumptively protected materials are obscene is a legal one and, therefore, not to be left to the discretion of the executing officers. Identification of visual depictions of minors engaging in sexually explicit conduct, in comparison, is a factual determination that leaves little latitude to the officers."

This part, though I suspect it's irrelevant, seems to argue against you. They’re saying that child porn is easy to spot and different from obscenity. Are you saying that infringement is easier to judge than obscenity? Anyway, it’s a red herring because their talking about seizing evidence here, aren’t they?

“Wholesale copying is also a factual determination that can be made by agents. It does not take a judge to determine that a website offering entire copies of the latest Harry Potter movie is probably doing so illegally. There is no First Amendment determination that has to be made as in an obscenity case.”

Based on the inaccuracies in the affidavits from ICE, I’d say that it apparently does take a judge.

To recap:
Are you saying that the test is the same when seizing evidence as it is when silencing speech?
Are you saying that we can trust ICE to know what activity applies to what law? (‘cause we kind of can’t)

Re: Re: Re: Re: Re: Danke Shoen

The seizure in the Kimbrough case was for preservation of evidence. The point from that case was that child porn can be seized absent a prior adversary hearing since child porn is easy to spot. I likened it to wholesale copying which is also easy to spot. To pass constitutional muster, such seizure warrants only need be sufficiently particular.

The point about in rem seizures and forfeitures of property being for purposes other than preservation of evidence was a different point. It is not accurate to say that seizures must be for the purpose of preservation of evidence. As in the case of these domain name seizures, the purpose is to seize the instrumentalities of crime. No matter what purpose the seizure is for, the same First Amendment hurdle would have to be met.

Re: Re: Re: Re: Danke Shoen

I remember telling you before that Section 985 dealt with real estate. I believe I told you to look at Rule G from the Federal Rules of Civil Procedure, titled Forfeiture Actions in Rem.

Perhaps you did, but I didn't buy it, because Rule G is mentioned nowhere it Title 17, nor in the relevant sections of Title 18.

Nonetheless, Rule G explicitly states:

If the defendant is real property, the government must proceed under 18 U.S.C. § 985.

...So we're back where we started.

But even if you don't believe that domain names are "real property," RuleG(b) explicitly states this:

(b) Notice to Known Potential Claimants.

(i) Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).

This procedure was not followed. I'm going to give ICE the benefit of the doubt, and assume that their lawyers knew that this law didn't apply. Feel free to interpret ICE's motives as you will.

Almost anything could be said to have some element of protected speech. That doesn't mean it cannot be seized by warrant absent a prior adversary hearing.

That only applies when the law does not single out entitities that primarily engage in speech, and when the crime cannot possibly have a "protected speech" defense. Also keep in mind an "adversarial hearing" does not mean a full trial, just a chance to challenge the warrant before a judge.

Kimbrough argued that the warrants were unconstitutional because many of items seized were presumptively protected speech.

Here's the difference: seizing Kimbrough's computers did not have the intended effect of taking those items out of circulation altogether. And, of course, his servers were seized specifically to preserve evidence that could be destroyed if the seizures didn't occur. Neither situation is applicable to the domain name seizures.

"In cases where warrants seek to seize material presumptively protected by the First Amendment, the level to which the items to be seized must be particularly described is heightened."

I'm amazed that you even bring out this quote, because it acts against the domain seizures. A domain name is not "particularly described." The fact that the First Amendment could possibly be involved means the "the level ... is heightened." The entire passage is reaffirming that the removal of speech should be "as narrow as possible" to achieve its aims, and any broadening of scope is unconstitutional. To satisfy this requirement, the government could only act against the particular files that were (potentially) infringing, not a website in toto. Anything more is prior restraint.

Identification of visual depictions of minors engaging in sexually explicit conduct, in comparison, is a factual determination that leaves little latitude to the officers.

Whether a work is infringing is not a "factual determination." The exact same content can be both lawful and unlawful - unlike child pornography, which is not lawful even if it is authorized. The fact that a work is copyrighted does not mean that infringement occured; the fact that a work was not authorized does not mean that infringement occured. These are not "factual determinations." They must be decided in a court of law, ideally before a jury. The fact that in at least one case, the content was authorized, is proof of this.

Talking about a tax on ink misses the whole point. If a printing press is being used to commit crimes, that specific printing press can be seized and forfeited.

Really? So you believe that if a prosecuter claims that a printing press is used to produce obscenity (which is a criminal offense), that press can be seized ex parte? You think that this couldn't possibly be considered prior restraint?

You might want to ask your professors about this.

In any case, I mentioned it to highlight the fact that the seizures don't have to be of protected materials to be prior restraint. Ink is not speech, yet according to Arcara, a tax on it is considered prior restraint. I brought it up to make it clear that the status of the domain names as protected speech doesn't matter - it only matters what the intended effect on speech is.

You seem to think that seizures must be for the purpose of preserving evidence. Again, this is not correct.

That's not what I'm saying. If the seizures are not for the purpose of preserving evidence, the Heller case doesn't apply. (The fact that the "preserving evidence" requirement was emphasized by the court should clue you in.)

It means that any mention of Heller as a defense of these seizures is invalid. Whether you mention other cases is beside the point; you just shouldn't mention Heller, because that case is completely immaterial with regards to these seizures.

Re: Re: Re: Re: Re: Danke Shoen

Real property is real estate. Look at 18 U.S.C. 985(b)(1)(B) where it speaks of "the owners or occupants of the real property shall not be evicted . . . ."

Domain names are intangible, personal property. Google it.

The notice requirement is for after the forfeiture action has been filed. Your claim that this procedure "has not been followed" is simply wrong.

Honestly, Karl, I could go line-by-line, post-by-post, and point out all of your legal errors, but there just aren't enough hours in the day. Besides, you just can't be reasoned with. You're going to think you've got it right no matter how many mistakes I point out, and at this point, I don't care. Go on and butcher it while the half-wits sing your praise. Good for you.

Shame on you, Mike, for putting forth Karl's ridiculous analysis as something plausible. Like "Lawyer" posted below, it's a "disjoint mess." The fact that Karl is the one doing the legal analysis for techdirt speaks wonders.

Re: Re: Re: Re: Re: Re: Danke Shoen

Real property is real estate. Look at 18 U.S.C. 985(b)(1)(B) where it speaks of "the owners or occupants of the real property shall not be evicted . . . ."
Domain names are intangible, personal property. Google it.

Karl speaks to this possibility:

...So we're back where we started.
But even if you don't believe that domain names are "real property," RuleG(b) explicitly states this:
(b) Notice to Known Potential Claimants.
(i) Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).

And then AJ says…

The notice requirement is for after the forfeiture action has been filed. Your claim that this procedure "has not been followed" is simply wrong.

I need some help understanding this: “before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).“ Does that leave open the possibility that the notice gets served after the property is seized?
If so, is there then some procedure that offers redress (this “claim under Rule G(5)(a)(ii)(B)”)?
Does Rule G even apply?
Somebody please help. (An answer of RTFM is, admittedly, valid.)

Re: Re: Re: Re: Re: Re: Danke Shoen

Real property is real estate.

That makes sense to me as well. But none of the other parts of 18 U.S.C. 46 seem applicable, either. 981 only covers things like bank fraud or counterfeiting money; 982 is for criminal forfeiture; 983 is for nonjudicial civil forfeiture; 984 is for "fungible property" (i.e. money); 986 deals with subpoenas for bank records; and 987 only covers terrorist acts.

Now, you're right, if a section of 18 U.S.C. 46 other than 985 justified the seizures, Rule G would be the right procedure to follow. The problem is that none of them do.

I suspect that the reason 18 U.S.C. 2323 references this section, is that either criminal forfeiture or nonjudicial civil forfeiture were the only forfeiture types that lawmakers expected would ever be used in copyright cases. Of course, I can't peer inside their brains, so I don't know for sure.

The notice requirement is for after the forfeiture action has been filed.

It's within 30 days after the last day notice was published, or within 60 days after the first day notice was published. As far as I can tell, that isn't what happened.

Besides, you just can't be reasoned with. You're going to think you've got it right no matter how many mistakes I point out, and at this point, I don't care. Go on and butcher it while the half-wits sing your praise.

Frankly, that's a better description of you than of me. You haven't pointed out "mistakes," you pointed out cases that don't apply, and legal theories that don't hold water. I even quote the text of the cases that you cite showing exactly why they don't apply.

Then a couple of days later, here you are again, citing the same irrelevant cases, making the same incorrect arguments, all the while ignoring any proof to the contrary that I've shown you.

If you think people who agree with me are "half-wits," maybe you haven't looked at your supporters lately. Resentful industry failures... people who fling "freetard" and "pro-piracy" insults, like monkeys throwing poo... and Darryl. If that's your team, I'm glad I got picked last.

Re: Re: Re: Danke Shoen

As domain names have been ruled not to be real property for th purposes of settling debts, it is unlikely that a court would find them as real property in any other way. So the questions of seizure against real property tend to fall by the wayside when you look at them.

As commercial speech and speech that infringes copyright or trademark is not subject to prior restraint, much of it is moot. The 1st amendment "free speech" cannot be invoked for illegal speech, such as violating copyright or trademark for commercial purposes. So really, there isn't much place to hide on this one.

Re: Re: Re: Re: Danke Shoen

"As commercial speech and speech that infringes copyright or trademark is not subject to prior restraint, much of it is moot. The 1st amendment "free speech" cannot be invoked for illegal speech, such as violating copyright or trademark for commercial purposes. So really, there isn't much place to hide on this one."

So you say. However you seem to have found a particularly cozy hole in which to hide when you conveniently ignore the clearly non-infringing speech affected by the seizures. This really irks me. You seem to want to have an argument in which you’re decidedly right instead of the argument that’s being offered. Leave your straw men at the door.

Secondly, who has determined that there is infringement going on? You don’t cite any statutes that deal with allegedly infringing speech. We have courts for just this purpose and I see the government’s desire to circumvent due process as troubling.

Lastly, I think that using quotations for emphasis is silly. Or maybe you put “free speech” in quotations because you don’t actually believe that the first amendment contains that guarantee.

Re: Re: Re: Re: Danke Shoen

As domain names have been ruled not to be real property for th purposes of settling debts, it is unlikely that a court would find them as real property in any other way. So the questions of seizure against real property tend to fall by the wayside when you look at them.

Huh? Domain names are property. They're not real property, as my understanding of that term means real estate. Domain names are intangible personal property, or as we call it in my part of the world, incorporeal movable property. Domain names can be seized. They have been seized for as long as domain names have existed. See, for example, the ACPA, 15 U.S.C. 1125(d). Domain names can be bought and sold. Their ownership can be transferred. Etc. They are property, no doubt about it.

Re: Re: Re: Danke Shoen

Arcara, by the court's own wording, only applies if the criminal act "manifests absolutely no element of protected expression." In other words, the allegedly criminal act "manifests an element" of protected expression, Arcara can not apply. Copyright infringement does, in fact, manifest that element - because First Amendment protection can possibly be a legitimate defense against the "criminal" act. Fair use, for example, is a legitimate defense against any infringement charge - it is even a defense against "criminal" infringement. Whether the defense is ultimately successful is completely immaterial. All that is required is the possibility that a First Amendment defense could be successfully raised, and Arcara does not apply.

I'm sorry, but you're wrong.

I understand why you want to get rid of Arcara, because your entire premise collapses if you don't, but you're wrong.

Copyright infringement manifests absolutely no element of protected expression. How a person would choose to try and defend themselves against the charge is immaterial to that fact.

As an example, murder also happens to manifest absolutely no element of protected expression. How a person defends themselves against a murder charge will still not change the fact that murder manifests absolutely no element of protected expression.

And btw, there is no fair use in the act of copyright infringement, so using that example isn't such a good idea. I'm aware it's been tried before, but so has "the dog ate my homework."

Re: Re: Re: Re: Re: Re: Danke Shoen

Ok. So going back to Karl's comment: What does your response have to do with whether or not one can claim fair use as a defense? You're acknowledging that fair use exists, and you're acknowledging that it's not infringement. Why is that not a defense.

Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

How would a Massage defense manifest any element of protected expression? There's an obvious difference between a defense that involves distributing information and one that involves refuting penetration?

But Arcara was only constitutional because "the sexual activity carried on in this case manifests absolutely no element of protected expression."

Are you saying the above is mischaracterization? That the court did not look at the type of charge and whether it was reasonably defensible under a free speech claim?

I really think that you're pretending not to see the obvious here. Fortunately, you aren't fooling anyone.

Please advise if you, in fact, see any way that someone accused of copyright infringement could be vindicated by a fair use claim. Please advise if you see any way that a charge of prostitution might be dismissed on free speech grounds alone.

If your answers to those two questions are the same, I congratulate you on ending this argument.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

You ignored what I wrote. If you can't grasp the concepts, just say so.

Anonymous, you ignored what I wrote. If you can't grasp the concepts, just say... Oh, wait. I'm sorry. I guess that more of a deflection than an argument.

One more time.

Please advise if you, in fact, see any way that someone accused of copyright infringement could be vindicated by a fair use claim. Please advise if you see any way that a charge of prostitution might be dismissed on free speech grounds alone.

If your answers to those two questions are the same, I congratulate you on ending this argument.

Re: Re: Re: Re: Danke Shoen

Fair use is only a defense against copyright infringement. That is the only unlawful act against which it could possibly be raised.

If infringement "manifests absolutely no element of protected expression," fair use could not be a defense against anything whatsoever. 17 U.S.C. 512's safe harbors could not be a defense against anything whatsoever. These laws would simply not exist.

Some instances of "copyright infringement" are recognized as protected expression. No instances of murder (or prostitution) are recognized as protected expression.

I don't know how you're not getting this. Can a First Amendment defense be legitimately raised against murder or prostitution? No. Can a First Amendment defense be legitimately raised against copyright infringement? Yes. Therefore, Arcara does not apply to copyright infringement. End of story.

Re: Re: Re: Re: Re: Re: Danke Shoen

Infringement by definition is illegal. If something qualifies as fair use, then it isn't infringement.

That's why I put "copyright infringement" in quotes. Before a defense is raised, it's only allegedly infringing. If those allegations are successfully challenged, then the "infringement" is actually speech that is protected under the First Amendment.

And the defense a person chooses to mount does not define or change the law they are accused of breaking.

The nature of the law determines what sort of defense can be raised against it. That's why a fair use defense can be raised against copyright infringement, but not against prostitution. Laws against infringement are a restriction on speech; laws against prostitution aren't.

So, for the millionth time, Arcara works perfectly, and always has.

Arcara can only apply if - in the judge's own words - the allegedly criminal act "manifests absolutely no element" of protected expression. In order for Arcara to apply, copyright infringement would have to be "categorically immune" from all First Amendment challenges (like prostitution is). The Supreme Court said explicitly that this isn't true.

I know you want Arcara to apply, because if it doesn't, then there's no possible way that attempting to block an entire website that is full of protected speech could be considered anything other than censorship. You're attempting to find a loophole that allows prior restraint of non-infringing speech. Unfortunately for you, Arcara is not that loophole.

And if you're a lawyer, I'd be careful in thinking that it is. Under the Vector Research v. Howard & Howard Attorneys P.C. ruling, the plaintiff's attorneys might be on the hook for civil rights violations if an infringement seizure is invalid. Better to err on the side of caution, I think.

Re: Re: Re: Re: Re: Re: Re: Danke Shoen

That's why I put "copyright infringement" in quotes. Before a defense is raised, it's only allegedly infringing. If those allegations are successfully challenged, then the "infringement" is actually speech that is protected under the First Amendment.

I understand your desperation, really, I do. But as I've said numerous times, the defense a defendant chooses to mount is immaterial to the ultimate legality of something.

In order for Arcara to apply, copyright infringement would have to be "categorically immune" from all First Amendment challenges (like prostitution is).

But it's not prostitution till it's been proven to be such.

See? I can play your silly game too. Cloud Books could have defended themselves by saying they were massages. But they didn't because your bogus legal hurdle is total bullshit.
It's something you made up to try and fit your agenda.

Please stop lying about this issue. I'm simply going to continue to correct you every time.

Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

But it's not prostitution till it's been proven to be such.

It doesn't have to be, it must merely be the original charge against them. Arcara specifically states that if the charge being brought against them is not something considered related to expression, then said process does not apply unless proven otherwise:

The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity.

As was also pointed out earlier, Arcara specifically states that something like a tax on ink may also be prior restraint:

It is true that the closure order in this case would require respondents to move their bookselling business to another location. Yet we have not traditionally subjected every criminal and civil sanction imposed through legal process to "least restrictive means" scrutiny simply because each particular remedy will have some effect on the First Amendment activities of those subject to sanction. Rather, we have subjected such restrictions to scrutiny only where it was conduct with a significant expressive element that drew the legal remedy in the first place, as in O'Brien, [Footnote 3] or where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity, as in Minneapolis Star. This case involves neither situation, and we conclude the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.

[...]

For the same reason, we must reject the Court of Appeals' reasoning analogizing the closure order sought in this case to an unconstitutional prior restraint under Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). The closure order sought in this case differs from a prior restraint in two significant respects. First, the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find. Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited -- indeed, the imposition of the closure order has nothing to do with any expressive conduct at all.

For someone happy to claim others are lyers, we seem to be the only ones willing to actually quote Arcara accurately.

The dissent asserts that we have previously struck down "[g]enerally applicable statutes that purport to regulate nonspeech . . . if they unduly penalize speech, political or otherwise." Post at 478 U. S. 709. This is obviously a correct statement of holdings which are not relevant here. In each of the cases cited by the dissent, the "nonspeech" which drew sanctions was intimately related to expressive conduct protected under the First Amendment. See Grayned v. City of Rockford, 408 U. S. 104 (1972) (demonstration results in prosecution under anti-noise ordinance); Marsh v. Alabama, 326 U. S. 501 (1946) (trespass in order to distribute religious literature); Cantwell v. Connecticut, 310 U. S. 296 (1940) (breach of peace prosecution based upon distribution of religious literature). Here, however, the "nonspeech" conduct subject to a general regulation bears absolutely no connection to any expressive activity.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

Who said it was protected speech? Only that when the issue involves speech or puts pressure on otherwise protected speech, Arcara does not apply.

I quoted a bunch of stuff that precisely says that - it does not need to be protected speech that is being affected, the simple fact being that you decide whether said speech is protected, whether too much pressure is put on and whether the measures are overly broad or not through some form of trial or hearing. Not only does Arcara not apply in those instances, but even in Arcara they got a chance for such arguments to be brought up before the store was closed.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

Oh for...

1) Arcara was an action brought against what was deemed non-expressive activity

2) Copyright infringment is an expressive activity, to decide which whether that infringement is protected or not under the first amendment must go through trial, as some forms of infringement are protected under fair use

3) Even in the event that the expressive activity is not protected, and even in the event where the activity isn't expressive at all (tax on ink), if the measures fall heavily on expressive, protected activity, then said measures must be struck down to the minimum necessary (thus some form of trial must happen to determine this)

4) None of the above has happened - the seizures have occurred without first amendment considerations where there is expressive activity, some of which will be protected

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

Arcara was brought agains something not considered protected expression.

Arcara specifically states that not only was the action brought against unprotected expression, but it was an activity that was not expressive at all, but did specifically acknowledge instances involving action against non-expressive activity that were deemed prior restraint. The 2 are not mutually exclusive, why you'd think so I have no idea.

If you can't even summarize the main point of Arcara correctly, you've got no business attempting to debate it.

I summed it up perfectly well, and with significant quotations above to back it up. For someone intent on misreading, misrepresenting and outright ignoring various parts of Arcara and its reasoning, you seem awfully keen on personal attacks regarding my ability to understand and debate it.

Thanks for all the fish Joe (I'll just go ahead and assume it's you again for now).

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

lolwut?

In Arcara, it is argued that due to the fact that the closure was being ordered on the basis of stopping non-expressive activity, no first amendment considerations were triggered, and that in closing the store the restriction of particular materials being distributed was not what was being attempted.

Here we have expressive activities - protected or not - that are being targeted, along with a whole bunch of other, presumably protected expressive activities going on at the same time. This triggers first amendment considerations through the simple fact that what is being brought against them involves expressive elements where a first amendment defence can be raised, and to decide whether said speech is protected or what is being done is overly broad you need to go through some form of hearing/trial.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

Every time this case comes up, I have to walk you guys through it...

In Arcara, it is argued that due to the fact that the closure was being ordered on the basis of stopping non-expressive activity no first amendment considerations were triggered, and that in closing the store the restriction of particular materials being distributed was not what was being attempted.

But yes, that is what happened in the Arcara case, and that is what happens if these sites are taken down.

Here we have expressive activities - protected or not - that are being targeted

Bzzt. You can't say "protected or not". That's the whole point of the discussion guy, and why Arcara applies.

This triggers first amendment considerations through the simple fact that what is being brought against them involves expressive elements where a first amendment defence can be raised

No, you missed a step. There is reasonable suspicion of copyright infringement (obviously), an illegal act, which does not possess any element of protected expression, and thus does not trigger any First Amendment protection.

Other examples of incidental speech on the site do not usurp that fact, or insulate them from prosecution.

To determine that an expressive activity is unprotected expressive activity, it needs to have gone through a trial first, thanks to the fact that some forms of infringement are protected activity, and the sites taken down may (in fact, we know for some of them) have a significant element that is protected.

No, you missed a step. There is reasonable suspicion of copyright infringement (obviously), an illegal act, which does not possess any element of protected expression, and thus does not trigger any First Amendment protection.

The mere suspicion of copyright infringement does not remove the need for first amendment consideration. The entire definition of prior restraint is not considering this before you close or take something down merely because you have suspicion - if suspicion alone were enough to remove that responsibility, there'd be no point in having the concept of prior restraint. Almost every action like this proceeds on the basis of suspicion, that's obvious of any accusation or initial action, what we're interested in is that we don't close or take down shops/sites/whatever based on mere suspicion. that these things get determined with a proper, fair hearing.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

Copyright infringement has no element of protected expression.

How many times do I have to say that?

Not even once, as no one has argued otherwise. Once again, for someone happy to claim others are ignoring things, you're happy to ignore what I said (to satisfy first amendment considerations expression being impacted by seizure/closure or other restrictions must be subject to hearing/trial to determine if it's protected expression or falls heavily on protected expression) in favour of what you wish I had said (that copyright infringement is protected expression).

All you've done is assert me as being wrong, never having shown proof otherwise. Not only have you deliberately left out important reasoning from Arcara, you've seen quite fit to argue that prior restraint does not exist, something no one else has even thought of arguing, particularly considering Arcara is carefully argued to explicitly not remove prior restraint.

The dajaz1 case is a good example. Every single one of the allegedly infringing works listed in the affidavit, were in fact authorized by a representative of the artist. They were protected speech, and the government shut it down ex parte.

That's a textbook case of prior restraint.

Cloud Books could have defended themselves by saying they were massages.

Massages are not expression, so a succesful defense against the prostitution charges would not mean that the alleged prostitution was actually protected speech. That's why Arcara applies to prostitution, but not to copyright, obscenity, libel, or any other legal limitation on expression.

You are essentially saying that Arcara does away with prior restraint altogether. Obscenity isn't protected expression either, so by your argument, obscenity "manifests absolutely no element of protected expression." So I guess seizing an entire bookstore ex parte for selling one allegedly obscene book is A-OK, right?

Please stop lying about this issue. I'm simply going to continue to correct you every time.

I'm not lying, I'm interpreting Arcara the was the judge himself wanted Arcara to be interpreted. No matter how much you continue to "correct" me, you'll still be wrong.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

Massages are not expression

My god. Are you really that dense? Guess what? A massage is just as much expression as anything you've claimed is expression. And you continue to state how alleged infringement is somehow more protected than alleged prostitution, when the reality is that what really matters is whether or not either illegal act is protected expression.

They aren't.

And that's the only thing that matters.

I love how you just state incorrect bullshit like it was fact. You've already been told by numerous lawyers what a buffoon you are for attempting to do so.

You are essentially saying that Arcara does away with prior restraint altogether.

This is exactly what Arcara says about prior restraint, by the dissenting judges no less:

"The closure order sought in this case differs from a prior restraint in two significant respects. First, the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find. Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited—indeed, the imposition of the closure order has nothing to do with any expressive conduct at all."

Arcara spells out why it applies to the domains:

"respondents argue that the effect of the statutory closure remedy impermissibly burdens its First Amendment protected bookselling activities. The severity of this burden is dubious at best, and is mitigated by the fact that respondents remain free to sell the same materials at another location. In any event, this argument proves too much, since every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities."

Not only have you been unable to get around Arcara, you can't even get around O'Brien, which is what all 1st Amendment cases are measured by:

""This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." 391 U.S., at 376-377, 88 S.Ct., at 1678-1679 "

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

A massage is just as much expression as anything you've claimed is expression.

Ah, so authorized songs are no more "expressive speech" than an erotic massage. OK, then.

what really matters is whether or not either illegal act is protected expression.

If you were right, Arcara would not limit its scope to illegal activity that "manifests absolutely no element of protected expression." No illegal activity is protected expression. They wouldn't have even made the distinction.

You are essentially saying that Arcara does away with prior restraint altogether.

This is exactly what Arcara says about prior restraint

Arcara did not eliminate prior restraint. The idea that it did is completely insane.

And the passage you quoted says so explicitly:

[T]he closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited.

That is exactly the basis for the ICE seizures.

So, once again, according to Arcara itself, it does not apply to these seizures.

Honestly, I could go on, but I won't. You're not going to listen to me, you're not going to listen to the judges in Arcara, and you don't even believe there's such a thing as prior restraint at all. A guy like you just can't be reasoned with, and I have no interest in responding to insults.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

Ah, so authorized songs are no more "expressive speech" than an erotic massage. OK, then.

LOL. Please Karl, tell us the where the line is drawn regarding what constitutes expression- you being such a legal expert and all...

Arcara: "the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited."

That is exactly the basis for the ICE seizures.

Nice job of taking something out of context.

The language you just quoted was used in regard to what could be pre-determined as obscene or not.

Obscenity, as everyone knows, is not a black and white legal issue. It is an opinion issue that is determined on a case-by-case basis by the court.

The case-by-case process of what is obscenity is not used in law to call into question every example of reasonable suspicion, as you seem to be wishing for.

If you were right, Arcara would not limit its scope to illegal activity that "manifests absolutely no element of protected expression." No illegal activity is protected expression. They wouldn't have even made the distinction.

Karl, I'm going to make this soooooooooo easy for you.

Post an example of infringement being judged a protected form of expression.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

I know I said I wouldn't, but what the hell...

LOL. Please Karl, tell us the where the line is drawn regarding what constitutes expression- you being such a legal expert and all...

"Comin' Through the Rye," "The Wind Done Gone," Negativland's "U2" album, the "Grey Album," the Beatles' "My Sweet Lord," fan fiction, sampling, mash-ups and remixes. All were found to be infringing. You're saying these cannot possibly be "expressive speech" any more than a massage with a happy ending. Right.

Do you think that ICE could have seized the offices of Cook's Source Magazine ex parte? Do you think this wouldn't have raised First Amendment concerns?

Obscenity, as everyone knows, is not a black and white legal issue. It is an opinion issue that is determined on a case-by-case basis by the court.

Exactly like copyright infringement. "The task is not to be simplified with bright line rules, for the statute, like the doctrine it recognizes, calls for case by case analysis." Campbell v. Accuff-Rose.

You can't just look at something and say "that's infringing." Even wholesale copying is occasionally allowed under Fair Use laws. Wholesale copying is not, by itself, sufficient evidence for infringment; and infringement, by itself, is not sufficient evidence for criminal infringement. And as both the dajaz1 case and the Google/Viacom case make clear, even the copyright holders themselves can sometimes get it wrong.

This is why it is so very, very important for accused infringers to be able to plead their case before a judge, prior to any injunction or seizure.

Post an example of infringement being judged a protected form of expression.

Post an example of obscenity being judged a protected form of expression. You can't, because if something is judged to be obscene, it is not protected expression.

On the other hand, I can name dozens of examples of accused infringment that have been judged a protected form of expression. So could you, I'll wager.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

You notice that in none of those cases was an ex parte injunction allowed?

But, whatever. When the defendants finally have a chance to contest the seizures - months after they occurred - then we'll see what a judge has to say.

I'll be very surprised if Arcara is even mentioned, but if it is, I'm pretty sure the judge will see right through that nonsense. We'll see.

Let's take "My Sweet Lord" for example. Do you know that there are two different components to that song that can be copyrighted?

No, of course you don't.

I assume you're talking about the copyright on the sound recording, and the copyright on the underlying composition. The copyright on the composition is handled by ASCAP or BMI for performances, and by the Harry Fox agency for recordings (in the U.S. at least). Those royalties are split between the songwriters and their publisher (often but not always a division of their record label). Of those royalties, the mechanical rates are statutory rates set by the Library of Congress. Sound recording royalties are exclusively assigned to the record label by the performing artists, and artist royalties are calculated as a small percentage of mechanical sound recording royalties - typically 15% going to the artist, the rest to the record label. All expenses for recording an album (and a portion of other expenses) are taken from artist royalties. If the recording artist is also the songwriter, typically they only get 75% of the combined royalties, under a "controlled composition" clause. Other forms of sound recording royalties (e.g. synch rates) are determined separately, and vary widely.

“He still doesn't know the two things about a song that can be copyrighted.”
Either the answer he gave you is correct, incorrect, or it’s not the answer to the question you were asking, but a different question’s answer. Since you haven’t called him out on why the answer he gave is incorrect, I suspect you’re asking a more nuanced question. It’s now on you to say how the question he’s answered differs from the question you asked. Otherwise, it’s more of a riddle that you’ve posed than a gauge of knowledge isn’t it? Riddles are fun, but I'm not sure they're all that useful in this discussion.
Enlighten us. Is his answer incorrect?

He still doesn't know the two things about a song that can be copyrighted.

I responded to you in detail about how a song is copyrighted, and what royalties accrue. If I'm wrong, I'd really like you to point out where. I'm a recording artist (though not a profitable one), and royalties are something I'm intimately involved with - as are many of my musician acquaintances.

So, if I'm wrong, pass that info along to me. I'll pass it along to them in turn, and maybe we can all find a way to make more money.

But I suspect you won't, because you're an uninformed asshat who resorts to insults and accusations of ignorance to make yourself feel intelligent.

Of course, that's merely a suspicion. Thank goodness I can't shut you up merely on the basis of my suspicions...

Re: Re: Re: Re: Re: Re: Re: Re: Re: Danke Shoen

The dajaz1 case is a good example. Every single one of the allegedly infringing works listed in the affidavit, were in fact authorized by a representative of the artist. They were protected speech, and the government shut it down ex parte.

The four songs you refer to, which were the examples used in the affidavit, prove embarrassing to the ICE agent, but since he made it clear it was not the sum total of the evidence, it doesn't matter. The site was still full of infringing material, making the cause for the seizure correct.

How to punish?

"It is prior restraint, and it is censorship, plain and simple."

I agree completely. Now the question is what kind of case can be made which punishes the perpetrators? Could a civil RICO case be built which entangles one or more industry players? Is there a basis for damages?

Where are all the lawyers?

Lawyers aren't chiming in because quality legal opinions don't happen in the space of a comment form. An issue like this would likely be resolved in a 10-20 page legal memorandum, with oral arguments from both sides. If the pay is enough (and it sometimes is), some firms would even put multiple attorneys on the case and take at least a couple weeks on the memo.

Yet you guys want a fully qualified legal response to a non-lawyer's disjoint mess which was posted yesterday on some no-name blog with zero face-time in the legal community, and you expect this lawyer to respond to your ridiculously unqualified responses to his post, while exposing him to the idiots who will troll him in real life because he destroys your argument with something you don't even understand ... and on top of all that, you want it done for free?

I'll just leave this here, because some of you guys still don't understand.

Re: Where are all the lawyers?

Re: Where are all the lawyers?

Nobody here wants any real legal analysis anyway. And you're right, if a lawyer came on here and told them how it is, they'd only troll that lawyer. They wouldn't even understand the truth if it was explained to them like they were little children. Everybody here just wants to think what they want to think--they do not care about truth.

Mike's the ringleader of a bunch of pirate-loving half-wits. Good for you, Mike. Congrats.

Re: Re: Where are all the lawyers?

You are nothing but a troll. I've reviewed your comment history and it's nothing but a wall of insults. In every single comment you assert how correct and fair you are while calling everyone else liars, tools, and idiots. If you don't like the social climate here, why don't go somewhere that has people whom share your obviously uncompromising slant on the issues? You probably don't because you enjoy trying to appear superior and pretending to "checkmate" the opposing opinions of others. If only there was an "ignore" button here.

Re:

How do you explain the fact that courts routinely issue ex parte seizure orders for allegedly infringing copies of copyrighted works or counterfeit goods without it being prior restraint?

First of all, such seizures are almost always used against trademark infringement, which has different rules (e.g. the Lanham Act does not apply to copyright).

Even so, ex parte seizures are not "routine." Ex parte seizures should only be done in exigent circumstances, such as when evidence is in imminent danger of being destroyed, or infringers can simply pack up and move out of the court's jurisdiction. Ironically, the ICE seizures virtually guaranteed that not only the accused websites, but other websites that felt threatened by the seizures, would do exactly that.

The most common remedy is a temporary injunction or restraining order - which, though issued pre-trial, still happen after an adversarial hearing. And even for these, there must be compelling evidence that they are necessary - such compelling evidence that it overrides the defendants' free speech rights, which must always be considered.

Also, there are significant safeguards put in place to guarantee there is no "collateral damage." The court can only seize the infringing articles themselves, plus the devices used to manufacture them. It cannot seize anything else (even for discovery purposes), and it cannot shut down the alleged infringers altogether. Doing otherwise means the seizures are "overbroad," thus unconstitutional prior restraint, and a violation of the alleged infringers' civil rights.

That's not what happened here. As an analogy, it's like the government heard that a record store sold bootleg albums. Without notice, and without the store's owners being present, they seize the building where the record store is located. They don't actually seize the bootlegs, but put all the store's contents onto the street. If this happened, it would be a)prior restraint, and b)useless for building a criminal case.

And all of the above regards the manufacture and sale of infringing commercial goods, and not non-commercial file sharing. In the online world, those safeguards are reflected in 512's "safe harbors" laws - laws which ICE completely ignored.

Re: Re:

The ex parte seizures occur in both copyright and trademark cases--so both the Copyright Act and the Lanham Act.

The takeaway I hoped you would notice is that when such seizures occur, they do not violate anyone's First Amendment rights. When infringement is properly alleged, harm to the plaintiff is presumed. This presumption works wonders for the plaintiff.

As far as justifications for the seizures, I still recommend you research civil in rem forfeitures. Preservation of evidence is not needed, and it's enough to be seizing the instrumentalities of crime.

If you put it all together, it's clear that the seizures can happen ex parte for the purpose of seizing the criminal's tools. When it's infringement, the First Amendment does not do nearly as much work as you seem to think.

I think there are some good challenges to these seizures, but they are Due Process challenges, not First Amendment challenges. I'd recommend you research those.

Re: Re:

As an analogy, it's like the government heard that a record store sold bootleg albums. Without notice, and without the store's owners being present, they seize the building where the record store is located. They don't actually seize the bootlegs, but put all the store's contents onto the street.

Funny thing, I remember there being a bootleg seizure in my town back in the 80s. The guy was also a DJ at a local public radio station. They took everything, including him to jail.

Re: Re: Re:

You are correct. The bootlegs themselves can be seized, as can any tool used to create the bootlegs. All of this is done ex parte without any notice to the defendant, and it does not violate anyone's First Amendment rights. If such seizures can take place where the underlying wrongdoing is only civil, of course it follows that the same can occur where the underlying wrongdoing is criminal.

Every single one of the allegedly infringing works listed in the affidavit, were in fact authorized by a representative of the artist. They were protected speech, and the government shut it down ex parte.

You're confusing the issues. If the songs were in fact authorized by the copyright owners (which they weren't), the website owner would argue that there was no copyright violation in the first instance. There is no need to resort to a First Amendment defense unless there is an underlying act of copyright infringement (which you argue there was not).

Re:

Your point is well taken. However, whether the recordings were authorized or not, the domain seizure constitutes a restriction on speech. So once again, we’re back to the nature of the activity that drew the warrants: speech.

A Response

>The state has not met their burden of showing that criminal activity occurred at all.

There is literally nothing in the statute which requires that (in order to seize property) there must be a full showing of the underlying alleged crime. This would be like requiring the state to prove that I committed a murder before they seize my gun to test it in relation to the crime. These seizures are performed as part of enforcement and investigation

>Moreover, it's pretty hard to claim "willful infringement" when a site has been declared completely legal under its own country's laws -- as is the case with Rojadirecta. If it's infringing, it's at most "innocent infringement," which is in no way a criminal act.

Innocent infringement is covered under 17 U.S.C 504(c), and provides that when there is statutory liability, a good-faith showing that the defendant was not aware of (and should not have been aware of) the fact that he was committing infringement can decrease his liability. This, however, is very limited:

>[defendant] must not only establish its good faith belief in the innocence of its conduct, it must also show that it was reasonable in holding such a belief *Peer Int’l Corp. v. Pausa Records, Inc.,* 909 F.2d 1332, 1336 (9th. Cir. 1990)

>The defendant must prove that it did not know and should not have known that its conduct constituted infringement. *Branch v. Ogilvy & Mather, Inc.,* 772 F. Supp. 1359, 1364 (S.D.N.Y. 1991)

>Use of the “innocent infringer” damage reduction of § 504(c)(2) appears to have has been limited to cases where the defendant (often unsophisticated) proves that it did not know about plaintiff's copyright and immediately ceased its infringing conduct upon being made aware of plaintiff's copyright claim *National Football League v. Primetime 24 Joint Venture,* 131 F.Supp.2d 458, 476 (S.D.N.Y. 2001).

In this case, the question is whether a foreign-run website can prove that it both did not know and *should not know* that it was posting materials which infringed upon American copyrights.

>You must share the primary's actus reus and mens rea -- in layman's terms, you had to actively, intentionally, and directly participate, and moreover you had to know the act was criminal. It's amazingly obvious that this doesn't apply to many of these websites.

Depending on jurisdiction (AFAIK the MPC is not a part of federal criminal law) accomplice liability does not require a shared actus reas, mens rea, or even direct participation. It requires only an intent to *assist* and an intent that the underlying crime take place. While an unwitting accomplice does not face liability, there is no reasonable argument that a website posting infringing works does not intend for those accessing the site from American shores commit the underlying crime of copyright infringement.

Furthermore, intent for the underlying crime to occur can be inferred from *knowledge* that the crime will occur (in this case easy to establish unless the defendants are alleged to be completely stupid) if:

1. The purveyor of legal goods for illegal use has acquired a stake in the venture
2. When no legitimate use for the goods or services exists
3. When the volume of business with the buyer is disproportionate to any legitimate demand or when sales for illegal use amount to a high proportion of the seller's total business (see *People v. Lauria* 251 Cal. App. 2d 471 (1967).

In this case, I would wager that the volume of business (ad revenue from access) dwarfs the legitimate use of these sites (if any). As such, intent for the underlying crime to occur can be inferred, along with the intent to assist it occur, satisfying the "willful" requirement.

>Under 17 U.S.C. 512's "safe harbors" provisions, if the sites followed the rules laid out therein, they are not liable for infringement at all

Refers solely to protections for service providers (an "entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received"), and has nothing to do with the liability of any individual site.

>Fort Wayne Books v. Indiana makes it very clear that an ex parte seizure of potentially protected speech, with the intent to take material out of circulation, is prior restraint:

It makes it clear only if you extend the precedent to almost laughable extremes. It is easy to distinguish between a case of a physical book series which possibly violated obscenity laws, and a case of an internet site which almost certainly violated copyright law. In *Fort Wayne*, the question was whether a *presumptively protected* speech could be infringed on the basis that it *could* be violating obscenity laws. Since copyright-infringing speech is not presumptively protected, the case is inapplicable.

In addition, the seizure cases cited are instances where seizures were used to prevent the distribution of expression with which the government disagreed, rather than the government using its power to protect the constitutional rights of one party (copyright being enumerated in Article I) against another.

>Copyright infringement does, in fact, have "an element of protected expression" -- that is, a First Amendment defense can be raised (it need not be raised successfully)

From my reading of the statute, that is not the case. There are enumerated defenses, but no general defense of "protected expression". One can argue fair use as an extension of first-amendment principles, but that's a bit of reductive reasoning. Remember, please, that you're comparing action to limit constitutional rights against individual laws (obscenity) with action to limit constitutional rights against the *constitutional rights of another party*.

>These laws were clearly to be used for counterfeit goods, not file sharing.

What's good for the goose is good for the gander. If you can reasonably extend rulings about how to deal with seizures of real goods vis-a-vis obscenity law to seizures of internet sites vis-a-vis the *constitutionally protected* rights of the copyright holder, I believe it's probably reasonable to extend 18 U.S.C 2323 to the seizure of the criminally infringing files themselves.

>"continued unlawful use" is not an "exigent circumstance" when that "use" involves potentially protected expression, or, for that matter, when the use is not necessarily unlawful in the first place.

1. As discussed above, I don't see where copyright infringement has been deemed a potentially protected expression. If that is an *argument* you are making, that's different from stating it as a conclusion of law.

2. The infringement is unlawful either way. Even if you're correct that the acts are not *criminal* they are still in violation of the civil provisions of the law.

>ICE did this deliberately to route around safe harbors and the First Amendment. They had no intent of filing criminal charges and were hoping the domain owners would be scared into silence. It is prior restraint, and it is censorship, plain and simple.

Safe harbors (as you cited) apply to ISPs, not to individual servers or to individual sites. And I strain to find as much problem with "censorship" to protect the constitutional rights of one individual against another.

We would not consider it an infringement of "free expression" to disallow an employer to shout racial slurs in the workplace. This is a similar circumstance: we are protecting the rights of those who are being attacked by limiting the rights of those assailing them.

Re: A Response

Copyright is not a constitutional right. Article I gives Congress the right to grant copyrights. So, while congress’ authority to grant copyrights is grounded in the Constitution, it is not a right guaranteed to the copyright holder by the Constitution. You can hardly equate free speech with copyright. Well, you can. But you’d be wrong.

Re: A Response

In this case, the question is whether a foreign-run website can prove that it both did not know and *should not know* that it was posting materials which infringed upon American copyrights.

The U.S. Copyright Office:

There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the world. Protection against unauthorized use in a particular country depends on the national laws of that country.

Re: A Response

Not a lot of time, but briefly:

There is literally nothing in the statute which requires that (in order to seize property) there must be a full showing of the underlying alleged crime. This would be like requiring the state to prove that I committed a murder before they seize my gun to test it in relation to the crime.

The state would have to show, at the very least, that a murder was committed at all. They can't seize a gun if nobody got shot.

The point I was making is that in order for the seizures to be valid, criminal infringement must have occured. Otherwise, the issue should be settled in a tort case, and ICE shouldn't be involved at all.

In this case, the question is whether a foreign-run website can prove that it both did not know and *should not know* that it was posting materials which infringed upon American copyrights.

It is not an American company, and was shown not to be infringing under the law in the country in which it operated (after a lengthy trial, in fact). As was pointed out by Kirk, "there is no such thing as an international copyright."

Also, "did not know" is very different than "should not know." The only case of "red flag infringement" is the IsoHunt case, which is still on appeal. In all other cases, the website had to have concrete knowledge of acual infringement. And those are all civil cases, not criminal ones - they could be liable for civil infringement, but still break no criminal laws.

[17 U.S.C. 512] Refers solely to protections for service providers [..] and has nothing to do with the liability of any individual site.

No, it doesn't. The definition you quoted only applies to entities referred to in (a) ("Transitory Digital Network Communications"). Read (k)(1)(b):

As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).

Pay attention to (c) and (d): "Information Residing on Systems or Networks at Direction of Users" and "Information Location Tools."

The former refers to user forums, sites with comments, etc., and the latter refers to search engines. Both types were among the sites whose domains names were seized.

Since copyright-infringing speech is not presumptively protected

You guys keep saying this, and it's simply not true. Allegedly infringing speech certainly is "presumptively protected," because if a successful defense is raised, the "infringing speech" is actually speech protected by the First Amendment. It doesn't lose its protected status until after it's actually found to be infringing. While this can be done on a preliminary basis after an adversarial hearing, and on a permanent basis after a trial, it should not be done ex parte.

In addition, the seizure cases cited are instances where seizures were used to prevent the distribution of expression with which the government disagreed, rather than the government using its power to protect the constitutional rights of one party (copyright being enumerated in Article I) against another.

Since these are criminal cases, the plaintiff in these cases is not an MPAA or RIAA client, it's the government. These sites are alleged not to have infringed on the rights of "one party," but the rights of the people.

What you describe is what happens in civil copyright infringement cases.

Ex parte seizures are very occasionally granted in tort cases, but only in extraordinary circumstances - and one of the things that a plaintiff in these cases has to show, is that the damages that the plaintiff suffers outweigh any possible concerns of the defendants, including First Amendment concerns. (Other requirements are "exigent circumstances," and the posting of a bond of equal value to whatever is seized, should the defendants be found innocent. There are more.)

I believe it's probably reasonable to extend 18 U.S.C 2323 to the seizure of the criminally infringing files themselves.

If it were only the files that were seized, I would agree. But they had already "seized" the files - that is, before the affidavit was even written, the government already possessed copies of the allegedly infringing files. These were not seizures to gather evidence. They were an admitted attempt to shut the sites down in their entirety.

The infringement is unlawful either way. Even if you're correct that the acts are not *criminal* they are still in violation of the civil provisions of the law.

In which case, ICE should not be involved. If they are infringing on civil copyright laws, then they should be settled in civil court, via a lawsuit. The government should not be the plaintiff.

Such an option was not even considered by ICE.

Also, thanks for listing the cases. I don't have time now (homework and practice for an upcoming gig), but I'll look at them when I get the chance.

Re: Re: A Response

Karl,

Any chance you could apply case law from copyright and trademark cases, as well as from civil forfeiture cases, to your analysis?

As I indicated to you above, the First Amendment is treated differently in such cases, and it makes little sense to base you arguments on case law that deals with obscenity or pornography, for example.

Re: Re: Re: A Response

Any chance you could apply case law from copyright and trademark cases, as well as from civil forfeiture cases, to your analysis?

As I said above, the sites I'm concerned about were not alleged to have engaged in trademark violations, so those cases wouldn't apply. These sites were not e-commerce sites; they sold nothing. If they did, maybe a difference defense (e.g. restraint of trade) could be raised, especially if the sites sold mostly non-infringing goods. But it's not my area of expertise, and it's not these sites I'm personally alarmed about.

I could name a couple of civil copyright cases where preliminary injunctions were considered prior restraint (e.g. the "Wind Done Gone" case).

I could cite cases of ex parte seizures in civil trials - but even there, they are extraordinary. The plaintiffs must prove that their immediate harm outweighs any concerns of the defendants, including First Amendment concerns. There also have to be exigent circumstances (the goods could easily be moved or destroyed), the warrant must be served properly, a bond must be posted, etc.

I could find no case where an ex parte seizure, without notification, was allowed where:

- The government was the sole plaintiff;
- There was no alleged trademark infringement (it was copyright infringement only);
- The defendants were engaged primarily in expressive speech (not the sale of goods);
- Defenses against infringement with a likelihood of success (e.g. fair use or Section 512) were not even considered in the seizure affidavit;
- The seizures were not limited to the infringing goods (or equipment used to produce them, or records), but included items that would shut down the defendants' speech activities altogether.

Re: Re: Re: Re: A Response

I don't have time to search for that for you, sorry.

Considering that the bulk of these seizures were for counterfeiting, and that they were done pursuant to civil in rem forfeiture of personal intangible property, it's strange that your analysis leaves out these central issues. The fact is, the seizures based on trademark law would be analyzed differently than the seizures based on copyright law. But, regrettably, your analysis doesn't make this distinction.

I think you're doing some good research, but you're not focusing on the right issues. Even your copyright analysis relies on cases that have nothing to do with copyright. I'm just trying to point you in the right direction.

Re: Re: Re: Re: Re: A Response

I don't have time to search for that for you, sorry.

I don't have much time to search either, frankly. (I probably shouldn't even be replying now, I've got a gig tonight.)

Considering that the bulk of these seizures were for counterfeiting, and that they were done pursuant to civil in rem forfeiture of personal intangible property, it's strange that your analysis leaves out these central issues.

This was originally a reply to a separate post on Techdirt, which dealt specifically with the copyright cases (RapGodfathers, dajaz1, OnSmash) or the search engine (torrent-finder), where trademark violations were not even alleged. That probably should have been clearer, since this is now a stand-alone article, but truthfully I didn't think to write another paragraph making it clear. Sorry about that.

The fact is, the seizures based on trademark law would be analyzed differently than the seizures based on copyright law. But, regrettably, your analysis doesn't make this distinction.

You're right, but it's not just my analysis that failed to make this distinction. The seizures were predicated on treating copyright and trademark the same, and by treating websites that primarily engaged in expressive speech the same as a website whose sole purpose is to trade in counterfeit goods.

I think you're doing some good research, but you're not focusing on the right issues. Even your copyright analysis relies on cases that have nothing to do with copyright.

Thanks for at least acknowledging that I'm trying to actually do research, and for not calling me a dirty pirate or something.

I did search for analogous cases, but I couldn't really find anything. And I think the reason I couldn't, is because these seizures are unprecidented.

The government simply isn't in the business of the wholesale silencing of an entity that engages primarily in expressive speech, merely on an ex parte determination of infringement. Ex parte seizures have occasionally been granted, but only in extreme conditions (which I've already outlined). None have been directed against entities that are explicitly exempt from liability under copyright law (512 in these cases).

p.s. I did look up some of the cases you cited. Oddly, all seem to suggest that these sites could not be criminally liable. People v. Lauria exonerated the owner of an answering service used by prostitutes, even though he had non-specific knowledge that the service was used for criminal activity. (I'll admit, however, that I should have said "assist" rather than "participate" when talking about accomplice theory.)

The cases of "innocent infringement" seem, to me, to apply to Rojadirecta as well - if they already went to court in their own country and were exonerated, how could they possibly have anything other than a good-faith belief that they weren't infringing? And of course, it's incomprehensible how they could be considered a "willful" infringer when they were following the law in their own country, thus eliminating any criminal infringement, and any reason ICE should be involved. Plus there's the whole jurisdiction issue.

But that's a debate for another time. I really should stop procrastinating.

. If you can reasonably extend rulings about how to deal with seizures of real goods vis-a-vis obscenity law to seizures of internet sites vis-a-vis the *constitutionally protected* rights of the copyright holder, I believe it's probably reasonable to extend 18 U.S.C 2323 to the seizure of the criminally infringing files themselves.

*constitutionally protected*You keep using that phrase. I do not think it means what you think it means.